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Full text of "North Carolina Register v.14 no. 1 (7/1/1999)"

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» 



NORTH CAROLINA 

REGISTER 



RECEIVED 
JUL 6 1999 

KATH«»Ne R. EVERETT 
LAW LIBRARY 



VOLUME 14 • ISSUE 1 • Pages 1 - 71 



July 1, 1999 



> 



IN THIS ISSUE 

Executive Orders 

Commerce - Industrial Commission 

ENR - Environmental Management 

ENR - Waste Management 

HHS - Facility Services 

Agriculture 

Commerce 

Cosmetic Art Examiners 

Environment and Natural Resources 

Health and Human Services 

Real Estate Appraisal Board 

Transportation 

Rules Review Commission 

Contested Case Decisions 



> 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 

This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



Rule Notices. Filings. Register. Deadlines. Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House (919)733-2678 

424 North Blount Street (919) 733-3462 FAX 

Raleigh, North Carolina 27601-2817 



contact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



mmasich@oah. state. nc. us 
rcreech@oah. state. nc. us 



Fiscal Notes & Economic Analysis 

Office of State Budget and ManagenKnt 

116 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist in 



(919) 733-7061 
(919) 733-0640 FAX 

wplonk @ osbm. state.nc . us 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite ]'59 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919) 733-2721 
(919) 733-9415 FAX 



Le gislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919)733-2578 

Raleigh, North Carolina 2761 1 (919) 71 5-5460 FAX 



contact: Mary Shuping, Staff Liaison 



inarys@ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

215 North Dawson Street (919)715-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 1 
Pages 1-71 



Julv 1, 1999 



This issue contains documents officially filed 
through June 10. 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh. NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III. Director 

Camille Winston. Deputy Director 

Molly Masich. Director of APA Services 

Ruby Creech. Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree. Editorial Assistant 

Jessica Flowers. Editorial Assistant 



IN THIS ISSUE 



I. EXECUTIVE ORDERS 

Executive Order 152 1 

II. IN ADDITION 

Commerce - Industrial Commission 2 

ENR - Environmental Management 3 

ENR - Waste Management 3 

III. RULE-MAKING PROCEEDINGS 
Agriculture 

Pesticide Board 4 

Environment and Natural Resources 

Wildlife Resources and Water Safety 5 

Health and Human Services 

Medical Assistance 4-5 

IV. PROPOSED RULES 
Environment and Natural Resources 

Wildlife Resources and Water Safety 6-12 

Health and Human Services 

Health Commission Services 12-17 

V. TEMPORARY RULES 

Environment and Natural Resources 

Coastal Resources Commission 44-47 

Marine Fisheries Commission 18-44 

VI. APPROVED RULES 48 5 1 

Commerce 

Banking Commission 
Environment and Natural Resources 

Wildlife Resources Commission 

Health Services 
Licensing Boards 

Cosmetic Art Examiners 

Real Estate Appraisal Board 
Transportation 

Highway. Division of 

VII. RULES REVIEW COMMISSION 52 57 

VIII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 58-59 

Text of Selected Decisions 

94 0SP 1791 60-68 

98DHR 1761 69-71 

IX. CUMULATIVE INDEX 156 



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NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The Nonh Carolina Administrative Code (NCACi has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Exammers 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Senices 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutntion 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


TT 


18 


Secretary' of State 


Landscape Architects 


26 


19A 


Transponation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


T) 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


4,^ 






Piiarmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing hoards. 



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EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 152 
ADVISORY COMMITTEE ON AGRICULTURE 



a. to advise the Governor concerning his policies related to 
agriculture; 



WHEREAS, agriculture is a major sector in the economy of b. 

our State: and 

WHEREAS, State policy on agriculture as set by the 
Governor should be developed with the advice of representatives c. 

of agriculture. 



to provide the Governor timely and relevant 
information that will assist him in formulating and 
implementing his agricultural policies; 

to recommend policies and programs to the Governor 
that advance the cause of agriculture in the State; 



NOW. THEREFORE, by the authority vested in me as 
Governor by the Constitution and laws of North Carolina, IT IS 
ORDERED: 



to assist the Governor in heightening citizen 
awareness of the past, present, and future importance 
of agriculture in the State; and 



Section 1. Committee and Membership e. 



to undertake such other functions and duties as may 
be assigned by the Governor. 



There is hereby established the Advisory Committee 

on Agriculture ( "Committee" ). Section ?k 



Administration 



b. The Committee shall consist of at least 15 members 
who shall be appointed by the Governor. The 
Governor shall appoint a Chair and Vice-Chair of the 
Committee. 

c. Each member shall serve at the pleasure of the 
Governor. 



b. 



The Governor's Office shall provide such clerical and 
other support services as may be required by the 
Committee. 

Members of the Committee shall serve on a voluntary 
basis without compensation of any sort, including 
travel or subsistence allowable under state law. 



d. Meetings may be called by the Governor or the Chair, 

and shall be held at least quarterly. 

Section 2. Duties 

The Committee shall have the following functions and duties: 



This order is effective immediately. 

Done in the Capital City of Raleigh, North Carolina, this the 
21,slday ofMay, 1999. 



14:1 



NORTH CAROLINA REGISTER 



July I, 1999 



IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of 
Rules for pubhcation. 



PUBLIC NOTICE OF RULE-MAKING 

BY THE NORTH CAROLINA INDUSTRIAL COMMISSION 

TO ESTABLISH HOSPITAL FEES FOR WORKERS' COMPENSATION CASES 

NOTICE IS HEREBY GIVEN that, pursuant to N.C. General Statute Sections 97-26(b )( 3 ), 97-26( a) and 9 7-80( a ), the North Carolina 
Industrial Commission will consider amending its fee schedule for hospital inpatient bills to become effective September 1. 1999. 
The Commission solicits the comments of all interested persons, firms, and organizations who wish to comment concerning any 
aspect of the amended fee schedule. Copies of the amended fee schedule may he obtained by any interested person by addressing a 
request to the address below. COPIES MAY ALSO BE OBTAINED ON THE INDUSTRIAL COMMISSION'S WEBSITE; 
http://www.comp.state.nc.us/ncichome.htm 

The amendment to the inpatient hospital fee schedule is designed: TO ESTABLISH a method of calculating inpatient hospital fees 
in workers' compensation cases pursuant to N.C. General Statute Section 97-26{b)(3) based upon Diagnostic Related Groupings and 
the inpatient hospital bill (UB-92 ) for the period beginning with adoption and extending until a successor method is adopted pursuant 
to N.C. General Statute Section 97-26(b)(3). 

The Commission requests written comments on the amendment. In addition, there will be a public hearing held on the 22nd day of 
July, 1999, at 10:00 a.m., in Room 2149, the Utilities Commission Hearing Room. Dobbs Building, 430 North Salisbury Street. 
Raleigh, N.C, during which the Commission will hear the verbal comments of persons scheduled to speak. Those desiring to make 
an oral presentation, not to exceed 10 minutes in length, should submit a request on or before 2 1 July 1999. Speakers at the public 
hearing are encouraged to prepare a written summary of remarks for the use of the Commission. 

WRITTEN COMMENTS. REQUESTS FOR COPIES AND REQUESTS FOR ORAL PRESENTATIONS SHOULD BE 
ADDRESSED TO COMMISSIOI^JER THOMAS J. BOLCH AT 430 NORTH SALISBURY STREET, RALEIGH, NC 2761 I 
COPIES MAY ALSO BE OBTAINED ON THE INDUSTRIAL COMMISSION'S WEBSITE: 

http://www.comp.stale.nc.us/ncichome.htm 

WRITTEN COMMENTS SHOULD BE FAXED OR MAILED NO LATER THAN AUGUST 2, 1999. 

The amendment to the method of calculating inpatient hospital fees is as follows: Diagnostic Related Groupings (DRG's) will be 
utilized subject to the following maximum and minimum. The maximum will be 100% of the hospital's itemized charges 
as shown on the UB-92 claim form. The minimum shall be 81.35% of the charges as shown on the UB-92 claim form. DRG's 
falling within the band limited by the maximum and minimum will be approved at whatever they are. 

The 81 .35% minimum was established by (a) reviewing data from the State Health Plan to ascertain the aggregate hospital itemized 
charges and aggregate amounts authorized for payment by the State Plan (including payments actually made by the State Plan and 
deductible, coinsurance, or other amounts for which the patient/insured may have been liable) for inpatient hospital claimspaid to 
participating hospitals by the State Plan during the fiscal year ended June 30, 1998. The Commission then utilized the data described 
in the preceding sentence to calculate the extent, if any, to which aggregate State Plan authorized payments were less than aggregate 
charges on inpatient hospital claims paid by the State Plan during the fiscal year ended June 30, 1998. (b) The Commission then 
calculated aggregate hospital itemized charges and aggregate payments authorized by the Commission on all inpatient hospital 
workers' compensation claims approved for payment by the Commission during the fiscal year ended June 30, 1998. 

Based on the data described in subdivisions (a) and (b) immediately preceding, the Commission established a minimum percentage 
that will result in a payment rate for inpatient workers' compensation cases that in the aggregate bears a percentage relationship to 
hospital itemized charges that is equal to the State Plan relationship between aggregate payments authorized and aggregate itemized 
charges for claims paid by the State Plan during the fiscal year ended June 30, 1998. 

This 26th day of May 1999. 

/s/ J. Howard Bunn. Jr., Chairman 
North Carolina Industrial Commission 



NORTH CAROLINA REGISTER July 1, 1999 14:1 



IN ADDITION 



PUBLIC NOTICE 

North Carolina Department of Environment and Natural Resources 

Division ot'Waste Management 

Post Office Box 27687 

Raleigh. North Carolina 2761 1-7687 

(919)733-2178 

Notice is hereby given of the Division of Waste Management's receipt of the Remedial Investigation Report. Groundwater Flow 
and Transport Model Report, Human Health and Ecological Risk Assessment (Baseline Risk Assessment) and Draft Feasibility Study 
Report for the former Seaboard Chemical Corporation facility located at 5899 Riverdale Drive, Jamestown, Guilford County, North 
Carolina, and the adjacent City of High Point former Ri\ crdalc Drive Landfill, which are collectively referred to as "the Site." 

The public comment period will extend for sixty (60) days following the publication of this notice. Comments regarding these 
reports should be sent within this time frame and should be addressed to: William L. Meyer. Director. Division of Waste 
Management, at the above address. 

All documents relating to the Site are available as part of the administrative record and can be reviewed at the following location 
during office hours (8:00 a.m. to 4:00 p.m.) Monday through Friday. 

Hazardous Waste Section 

401 Oberlm Road. Room 150 

Raleigh, North Carolina 27605 

call (919) 733-2178 extension 31 1 for appointment 



Editor's Notice 

The Rules Division omitted the Comment Procedures to the Notice of Text published for the rules cited within 15A NCAC 2E, 
published in the Register 13 NCR 24, Page 1998. The Comment period has been extended due to this omission. 

Comment Procedures as follows: The purpose of this announcement is to encourage those interested in this proposal to provide 
written comments. It is very important that all interested and potential affected parties make their views known to the Ensironmental 
Management Commissic^n whether m favor or opposed to liny and aM pnnisions of the prt>posal being noticed. The public comment 
periodends August 2, 1999. Written comments, data, or other information relcvent to this propcisal may be submitted to: Nat Wilson. 
DENR/Division of Water Resources. PO Box 27687. Raleigh. NC 2761 1. Tel. (919) 715-5445. 



14:1 NORTH CAROLINA REGISTER July 1, 1999 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agency must publish 
a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a 
temporary rule ser\'es as a Notice of Ride-making Proceedings and can be found in the Register under the section heading of 
Temporary Rules. A Rule-making Agenda published by an agency senes as Rule-making Proceedings and can be found in the 
Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-2I .2. 



( 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

~\ mtice of Rule-making Proceedings is hereby given by the 
iy North Carolina Pesticide Board in accordance with G.S. 
150B-2I.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 2 

NCAC 9L .05(12. .1201. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 143-440{a}{b}: 143-441; 
143-458 



( 1 ) any pesticide required by the environmental 
protection agency to bear the designation on its 
labeling "Restricted Use Pesticide"; 

(2) arsenic trioxide. all formulations of which must be 
sold and/or purchased in accordance with additional 
regulations (2 NCAC 9L . 1 200) adopted by the North 
Carolina Pesticide Board; except for federally 
registered ant control products ccintainini; arsenic 
trioxide (solid formulation manufactured in a sealed 
metal container only) tor: 

(a) domestic outdoor - domestic dwellings, or 

(b) domestic indoor - domestic dwellings; 

(3) any pesticide approved under 2 NCAC 9L .0318. 

Authority G.S. 143-440(aUh): 143-441: 143-458. 



Statement of the Subject Matter: 2 NCAC 9L. 0502 designates 
certain pesticides as restricted use pesticides, which are subject 
to greater restrictions on sale and use than general use 
pesticides. The proposed amendment would exempt certain cuit 
control pesticides from this Rule. 2 NCAC 9L . 1201 establishes 
restrictions for the use or storage of pesticides containing 
arsenic trioxide. This proposed amendment would exempt 
certain ant control products from this Rule. 

Reason for Proposed Action: This rule-making proceedings 
was initiated as a result of a petition submitted by Dr. John A. 
Todhunter. SRS International Corporaticm. on behalf of Grant 
Laboratories, Inc. 

A Public Hearing will be conducted at 12:30 p.m. on August 
10. 1999 at the James B. Hunt. Jr. Horse Complex. State 
Fairgrounds, corner of Trinity Road and Youth Center Road. 
Raleigh. NC 

Comment Procedures: Written conunents may be submitted to 
Jatnes W. Burnette. Jr., Secretary, North Carolina Pesticide 
Board, c/o Food and Drug Protection Division. Pesticide 
Section. North Carolina Department of Agriculture and 
Consumer Senices, PO Box 27647. Raleigh. NC 27611. 

CHAPTER 9 - FOOD AND DRUG PROTECTION 
DIVISION 

SUBCHAPTER 9L - PESTICIDE SECTION 

SECTION .0500 - PESTICIDE LICENSES 

.0502 LIST OF RESTRICTED USE PESTICIDES 

For the purpose of this Regulation a restricted use pesticide is: 



SECTION .1200 - ARSENIC TRIOXIDE 

.1201 RESTRICTIONS ON USE AND STORAGE 

All pesticide formulations containing the active ingredient 
arsenic trioxide shall not be used or stored inside or in the 
immediate vicinity of any building used as a human dwelling. 
dwelling; except for federally registered ant control products 
containing arsenic trit)xide (solid formulation manufactured in 
a sealed metal container only) for: 

( 1 ) domestic ouldo(>r - domestic dwellings, or 

(2) domestic indoor - domestic dwellings. 

Authority G.S. 143-4401 bl: 143-441. 



TITLE 10 - DEPARTMENT OF HEALTH & HUMAN 
SERVICES 

CHAPTER 26 - MEDICAL ASSISTANCE 

A mtice of Rule-making Proceedings is hereby given by the 
1 V DHHS - Division of Medical Assistance in accordance with 
G.S. 150B-2I.2. The agency shall subseqiwntly publish in the 
Register the text of the rule(s} it proposes to adopt as a result of 
this notice of rule-making proceedings and an\ comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 26B .01 13. Other rules nuiy be propo.sed in the 
course of the rule-nuiking process. 



Authority for the rule-making: G.S. J08A-25(b): J08A-54:42 
CFR 441. Subpart D 



. I 



NORTH CAROLINA REGISTER 



July 1, 1999 



14:1 



RULE-MAKING PROCEEDINGS 



Statement of the Subject Matter: This Rule establishes the 
continued stay review criteria. The change is in Subparagraph 
(5) which establishes reimbursement for post acute level of care 
for patients through the age of 17. 

Reason for Proposed Action: This Rule is being revised due to 
the termination of the Carolina Alternatives Program. 



comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF .0300. Other rules may he proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3: 75A-15 



Comment Procedures: Written comments concerning this rule- 
making action must he submitted to Portia W. Rochelle. Rule- 
making Coordinator. Division of Medical Assistance. 1985 
Umstead Drive, PO Bo.x 29529. Raleigh. NC 27626-0529. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND WATER 
SAFETY 

-\ jotice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Resources Commission in 
accordance with G.S. I50B-21.2. The agency shall subsequently 
publish in the Register the te.xtofthe rule(sj it proposes to adopt 
as a result of this notice of rule-making proceedings and any 



Statement of the Subject Matter: To adopt a rule for no-wake 
zones in the waters of Mountain Island Lake that preside in 
multiple counties. 

Reason for Proposed Action: The Mountain Island Lake 
Marine Commission initiated the no-wake zones pursuant to 
G.S. 75A-15 to protect public safety in the area by restricting 
vessel speed. The Wildlife Resources Commission may adopt 
this Rule as a temporary rule pursuant to G.S. 150B-2I . I(al } 
following this abbreviated notice. 

Comment Procedures: The record will he open for receipt of 
written conunents until the Notice of Text is published in the 
North Carolina Register. Such written comments must he 
delivered or mailed to the North Carolina Wildlife Resources 
Commission. 512 N. Salisbury Street. Raleigh. NC 27604-1 188. 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice 
of Ride-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days 
for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutoiy reference: G.S. I50B- 
21.2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Wildlife Resources Commission 
intends to amend the rule cited as I5A NCAC lOD .0103. 
Notice of Rule-making Proceedings was published in the 
Register on April I. 1999. 

Proposed Effective Date: July I. 2000 

A Public Hearing will be conducted at 10:00 a.m. on July 22. 
1999 at the Archdale Building. Room 332. 512 North Salisbury 
Street, Raleigh. NC 27603. 

Reason for Proposed Action: To set/amend seasons including 
the addition of wateifowl hunting opportunities on the game 
lands, and regulate the manner of hunting on game lands which 
are necessary to manage and consen'e the resource. The 
Wildlife Resources Commission may adopt this Rule as a 
temporan, rule pursuant to G.S. 150B-21. 1(al > following the 
abbreviated notice as indicated in the Notice of Rule-Making 
Proceedings or following the public hearing and public 
comment period as indicated in this notice. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, the 
record of hearing will be open for receipt of written comments 
from July 1. 1999 to August 2. 1999. Such written comments 
must be delivered or mealed to the North Carolina Wildlife 
Resources Commission. 512 N. Salisbury Street. Raleigh. NC 
27604-1188. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds and does not have 
a substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

CHAPTER 10 - WILDLIFE RESOURCES AND WATER 
SAFETY 

SUBCHAPTER lOD - GAME LANDS REGULATIONS 

SECTION .0100 - GAME LANDS REGULATIONS 

.0103 HUNTING ON GAME LANDS 

(a) Safety Requiremenls, No person while hunting on any 
designated game land shall he under the intluence ot alcohol or 
any narcotic drug, or fail to comply with special restrictions 



enacted by the National Park Service regarding the use of the 
Blue Ridge Parkway where it adjoins game lands Hsted in this 
Rule. 

(b) Traffic Requirements. No person shall park a vehicle on 
game lands in such a manner as to block traffic, gates or 
otherwise prevent vehicles from using any roadway. 

(c) Tree Stands. It is unlawful to erect or to occupy, for the 
purpose of hunting, any tree stand or platform attached by nails, 
screws, bolts or wire to a tree on any game land designated 
herein. This prohibition shall not apply to lag-screw steps or 
portable stands that are removed after use with no metal left 
remaining in or attached to the tree. 

(d) Time and Manner of Taking. Except where closed to 
hunting or liinited to specific dates by this Chapter, hunting on 
game lands is permitted during the open season for the game or 
furbcaring species being hunted. On managed waterfowl 
impoundments, hunters shall not enter the posted impoundment 
areas earlier than 4:00 a.m. on the permitted hunting dates, and 
hunting is prohibited after 1:00 p.m. on such hunting dates; 
decoys shall not be set out prior to 4:00 a.m. and must be 
removed by 3:00 p.m. each day. No person shall operate any 
vessel or vehicle powered by an internal coinbustion engine on 
a managed waterfowl impoundment. No person shall attempt to 
obscure the sex or age of any bird or animal taken by severing 
the head or any other part thereof or possess any bird or animal 
which has been so mutilated. No person shall place, or cause to 
be placed on any game land, salt, grain, fruit, or other foods 
without prior written authorization of the commission or its 
agent. A decision to grant or deny authorization shall be made 
based on the best management practices for the wildlife species 
in question. No person shall take or attempt to take any game 
birds or game animals attracted to such foods. No live wild 
animals or wild birds shall be removed from any game land. 

(e) Definitions: 

(1) For purposes of this Section "Eastern" season refers 
to seasons set for those counties or parts of counties 
listed in I5A NCAC lOB .020.^(b)( 1 HA); "Central" 
season refers to seasons set for those counties or parts 
of counties listed in 15A NCAC lOB .0203(bH 1 )(D); 
"Northwestern" season refers to seast)ns set for those 
counties or parts of counties listed in ISA NCAC lOB 
.0203(b)( 1 )(B); "Western" season refers to seasons set 
for those counties or parts of counties listed in 15A 
NCAC lOB .0203(b)(1)(C). 

( 2 ) For purposes of this Section, "Dove Only Area" refers 
to a Game Land on which doves may be taken and 
dove hunting is limited to Mondays, Wednesdays. 
Saturdays and to Thanksgiving. Christmas and New 
Year's Days within the federally-announced season, 

( 3 ) For purposes of this Section. "Three Days per Week 



NORTH CAROLINA REGISTER 



July /, 1999 



14:1 



PROPOSED RULES 



Area" refers to a Game Land on which any game may 
be taken during the open seasons and hunting is 
hmited to Mondays. Wednesdays. Saturdays and 
Thanivsgiving, Christmas and New Years Days. 
These "open days" also apply to either-sex hunting 
seasons listed under each game land. Raccoon and 
opossum hunting may continue until 7:00 a.m. on 
Tuesdays, until 7:00 a.m. on Thursdays, and until 
midnight on Saturdays. 
(4) For purposes of this Section, "Six Days per Week 
Area" refers to a Game Land on which any game may 
be taken during the open seasons, except that: 

(A) Bears shall not be taken on lands designated 
and posted as bear sanctuaries; 

(B) Wild boar shall not be taken with the use of 
dogs on such bear sanctuaries, and wild boar 
may be hunted only during the bow and arrow 
seasons, the muz/.le-loading deer season and 
the regular gun season on male deer on bear 
sanctuaries; 

(C) On game lands open to deer huntmg located in 
or west of the counties of Rockingham, 
Guilford, Randolph. Montgomery and Anson, 
the following rules apply to the use of dogs 
during the regular season for hunting deer with 
guns: 

(i) Except for the counties of Cherokee, 
Clay, Graham, Jackson, Macon. 
Madison. Polk, and Swain, game birds 
may he hunted with diigs. 

(ii) In the counties of Cherokee. Clay, 
Graham. Jackson, Macon, Madison, 
Polk, and Swain, small game in season 
may be hunted with dogs on all game 
lands except on bear sanctuaries. 

(D) On bear sanctuaries in and west of Madison, 
Buncombe, Henderson and Polk counties dogs 
shall not be trained or allowed to run unleashed 
between March 1 and the Monday on or 
nearest October 15; 

(f) Game Lands Seasons and Other Restrictions: 

( 1 ) Alcoa Game Land in Davidson, Davie. Montgomery, 
Rowan and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(2) Angola Bay Game Land in Duplin and Pender 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(3) Anson Game Land in Anson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 



open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(4) Bachlelor Bay Game Land in Bertie and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(5) Bertie County Game Land in Bertie County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(6) Bladen Lakes State Forest Game Land in Bladen 
County 

( A ) Three Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Deer of either sex may also be taken the 
Saturday preceding Eastern bow season with 
bow and arrow and the Friday preceding the 
Eastern muzzle-loading season with any legal 
weapon ( with weapons exceptions described in 
this Paragraph) by participants in the Disabled 
Sportsman Program. 

(C) Handguns shall not be carried and. except lor 
muzzle-loaders, rifles larger than .22 caliber 
rimtlre shall not be used or possessed. 

(D) On the Breece Tract and the Singletary Tract 
deer and bear inay be taken only by still 
hunting. 

(E) Wild turkey hunting is by permit only. 

(7) Brushy Mountains Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(8) Bullard and Branch Hunting Preserve Game Lands in 
Robeson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(9) Butner - Falls of Neuse Game Land in Durham, 
Granville and Wake counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and New 
Year's Days, and on the opening and closing 
days of the applicable waterfowl seasons. 
Waterfowl shall not be taken after 1 :00 p.m. 
On the posted waterfowl impoundments a 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



PROPOSED RULES 



(10) 



(11) 



(12) 
(13) 



(14) 



(15) 



(16) 



(D) 

(E) 
(F) 



(B 



(C) 



(B) 



(C) 



(B) 



(C) 



(17) 



special permit is required for all waterfowl 

hunting after November 1. 

Horseback riding, mcluding all equine species, 

is prohibited. 

Target shooting is prohibited 

Wild turkey hunting is by permit only. 

Cape Fear Game Land in Pender County (18) 

(A) Six Days per Week Area 

Deer of either sex may be taken all the open 

days of the applicable Deer With Visible 

Antlers Season. 

Turkey Hunting is by permit only on that (19) 

portion known as the Roan Island Tract. 

Caswell Game Land in Caswell County 

(A) Three Days per Week Area 

Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible (20) 

Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Central muzzle- 
loading season by participants in the Disabled 
Sportsman Program. 

Horseback riding is allowed only during June, 
July, and August and on Sundays during the 
remainder of the year except during open 
turkey and deer seasons. Horseback riding is 
allowed only on roads opened to vehicular 
traffic. Participants must obtain a game lands 
license prior to engaging in such activity. (21 ) 

Caswell Farm Game Land in Lenoir County 

(A) Dove-Only Area 

Catawba Game Land in Catawba and Iredell counties 

( A ) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

(C) Deer may be taken with bow and arrow only 
from the tract known as Molly's Backbone. 

Chatham Game Land in Chatham County 

(A) Six Days per Week Area t5+H22j 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Cherokee Game Land m Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 

Antlers Season. f5i)(23) 

Cherry Farm Game Land in Wayne County 
(A) Three Days per Week Area 

Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible 

Antlers Season. 

The use of centertlre ritles and handguns is 

prohibited. 
Chowan Game Land m Chowan County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 



open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may be 
taken anytime during the Deer With Visible 
Antlers season. 
Chowan Swamp Game Land in Gates County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

Columbus County Game Land in Columbus County. 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

Croatan Game Land in Carteret, Craven and Jones 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Mondays. 
Wednesdays, Saturdays; on Thanksgiving. 
Christmas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

Currituck Banks Game Land in Currituck County 

(A) Six Days per Week Area 

(B) Permanent waterfowl blinds 



in Currituck 

Sound adjacent to these game lands shall be 
hunted by pennit only after November _L 

(C) Licensed huntin<i guides ma\' accompany the 
permitted individual or party provided the 
guides do not possess or use a firearm. 

(D) The b()undarv of the Game Land shall extend 
five yards from the edge ol' the marsh or 
shoreline. 

Dare Game Land in Dare County 
(A) Six Days per Week Area 

Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible 

Antlers Season. 

No hunting on posted parts of bombing range. 

The use and training of dogs is prohibited from 

March I through June 30. 
Duponl State Forest Game Lands in Henderson and 
Transylvania counties 

(A) Hunting is by Pennit only. 

( B ) The training and use of dogs for hunting except 
during scheduled small game permit hunts tor 
squirrel, grouse, rabbit, or quail is prohibited. 

(C) Participants of the Disabled Sportsman 
Program may also lake deer of either sex with 
any legal weapon on the Saturday prior to the 
first segment of the Western bow and arrow 
season. 



(B 



(C) 
(D) 



NORTH CAROLINA REGISTER 



July 7, 1999 



14:1 



PROPOSED RULES 



(£51 (24) Dysartsville Game Land in McDowell and Rutherford 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 

open days of the applicable Deer With Visible t30) (31) 
Antlers Season. 
f24) (25) Elk Knob Game Land in Ashe and Watauga counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 

Antlers Season. t^(32) 

(251 (26) Gardner-Webb Game Land in Cleveland County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(261(27) Goose Creek Game Land in Beaufort and Pamlico (321(33) 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may he taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) On posted waterfowl impoundments waterfowl 
may be taken only on Mondays, Wednesdays, 
Saturdays; on Thanksgiving, Christmas and 
New Year's Days; and on the opening and 
closing days of the applicable waterfowl 
seasons. After November 1 , on the Pamlico 
Point, Campbell Creek. Hunting Creek and 
Spring Creek impoundments, a special permit 

is required for hunting on opening and closing (331(34] 
days of the duck seasons. Saturdays of the 
duck seasons, and on Thanksgiving and New 
Year's day. 
(271( 28) Green River Game Land in Henderson, Polk and 
Rutherford counties 

(A) Six Days per Week Area (341(35) 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season in that portion in Rutherford 
County; and deer of either sex may be taken 

the last open day of the applicable Deer With (351 (36) 
Visible Antlers Season in that portion m Polk 
and Henderson counties. 
(2^ (29) Green Swamp Game Land in Brunswick County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(2^(30) Gull Rock Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) On the posted waterfowl impoundments of 
Gull Rock Game Land hunting of any species 



of wildlife is limited to Mondays, Wednesdays, 
Saturdays; Thanksgiving, Christmas, and New 
Year'sDays; and the opening and closing days 
of the applicable waterfowl seasons. 

Hickorynut Mountain Game Land in McDowell 

County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

Hofmann Forest Game Land in Jones and Onslow 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Sea.son. 

Holly Shelter Game Land in Pender County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Eastern muzzle- 
loading season with any legal weapon and the 
Saturday preceding Eastern bow season with 
bow and arrow by participants in the Disabled 
Sportsman Program 

(C) Waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons regardless of the day of the week on 
which they occur. 

Huntsville Community Farms Game Land in Yadkin 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

Hyco Game land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Jordan Game Land in Chatham, Durham, Orange and 
Wake counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christinas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

(D) Horseback riding, including all equine species, 
is prohibited. 

(E) Target shooting is prohibited. 

(F) Wild turkey hunting is by permit only. 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



PROPOSED RULES 



(36)137 



Lantern Acres Game Land in Tyrrell and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may be 
taken anytime during the Deer With Visible 
Antlers season. 

(3?)(38} Lee Game Land in Lee County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(-3^ (39) Linwood Game Land in Davidson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

t39) (40) Moore Game Land in Moore County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(46) (41 ) Nantahala Game Land in Cherokee. Clay, Graham. 
Jackson, Macon, Swain and Transylvania counties 

( A ) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day ol the applicable Deer With Visible 
Antlers Season in that portion located in 
Transylvania County. 

(C) Raccoon and opossum may be hunted only 
from sunset Friday until sunrise on Saturday 
and from sunset until 12:00 midnight on 
Saturday on Fires Creek Bear Sanctuary in 
Clay County and in that part of Cherokee 
County north of US 64 and NC 294, east of 
Persimmon Creek and Hiwassee Lake, south of 
Hiwassee Lake and west of Nottely River; in 
the same part of Cherokee County dog training 
is prohibited from March 1 to the Monday on 
or nearest October 13. 

f4-i-) (42) Neuse River Game Land in Craven County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(421 (43) New Lake Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the tlrst six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(431 (44) North River Game Land in Currituck County 

( A ) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 



(441(45) 



(451(46 



(4<T)(47 



t4?1(48 



(4H1(49 



Thanksgiving, and the last six open days of the 

applicable Deer With Visible Antlers Season. 

In addition, one antlerless deer may be taken 

anytime during the Deer With Visible Antlers 

season. 
(C) The boundary of the Game Land shall extend 

five yards from the edge of the marsh or 

shoreline. 
Northwest River Marsh Game Land in Currituck 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may be 
taken anytime during the Deer With Visible 
Antlers season. 

(C) The boundary of the Game Land shall extend 
five yards from the edge of the marsh or 
shoreline. 

Pee Dee River Game Land in Anson. Montgomery, 
Richmond and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Use of centerfire rifles prohibited in that 
portion in Anson and Richmond counties 
North of US-74. 

Perkins Game Land in Davie County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

Person Game Land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays. 
Thursdays and Saturdays, Christmas and New 
Year's Days, and on the opening and closing 
days of the applicable waterfowl seasons. 

Pisgah Game Land in Avery. Buncombe. Burke. 
Caldwell. Haywood, Henderson, Madison. 
McDowell. Mitchell. Transylvania. Watauga and 
Yancey counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season except on that portion of Avery 
County north of the Blue Ridge Parkway and 
that portion in Haywood County encompassed 
by US 276 on the north. US 74 on the west. 
and the Blue Ridge Parkway on the south and 
east. 



10 



NORTH CAROLINA REGISTER 



July I, 1999 



14:1 



PROPOSED RULES 



(C) Harmon Den and Sherwood Bear Sanctuaries 
in Haywood County are closed to hunting 
raccoon, opossum and wildcat. Traming 
raccoon and opossum dogs is prohibited from 
March 1 to the Monday on or nearest October 
15 in that part of Madison County north of the 
French Broad River, south of US 25-70 and 
west of SR 1319. 
(491 (50) Pungo River Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(501 (51) Roanoke River Wetlands in Bertie. Halifax and 
Martin counties 

(A) Hunting is by Permit only. Vehicles are 
prohibited on roads or trails except those 
operated on official Commission business or 
by permit holders. 
(5ii (52) Robeson Game Land in Robeson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(5^ (53) Sampson Game Land in Sampson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(551 (54) Sandhills Game Land in Moore, Richmond and 
Scotland counties 

(A) Three Days per Week Area 

(B) The Deer With Visible Antlers season for deer 
consists of the open hunting dates from the 
second Monday before TTianksgiving through 
the third Saturday after Tlianksgiving except 
on the field trial grounds where the gun season 
is from the second Monday before 
Thanksgiving through the Saturday following 
Thanksgiving. Deer may be taken with bow 
and arrow on all open hunting dales during the 
bow and arrow season, as well as during the 
regular gun season. Deer may be taken with 
muzzle-loading firearms on Monday. 
Wednesday and Saturday of the second week 
before Thanksgiving week, and during the 
Deer With Visible Antlers season. 

(C) Gun either-sex deer hunting is by permit only 
the Thursday and Friday before Thanksgiving 
Week. For participants in the Disabled 
Sportsman Program, either-sex deer hunting 
with any legal weapon is permitted on all areas 
the TTiursday and Friday prior to the muzzle- 
loading season described in the preceding 
paragraph. Except for the deer seasons 
indicated in the preceding paragraph and the 



(541(55) 



(551(56) 



t56)i51 



(5?1(58) 



t5Rli59 
(591(60 



(D 



(E) 
(F) 



(G) 



managed either-sex permit hunts, the field trial 
grounds are closed to all hunting during the 
period October 22 to March 3 1 . 
In addition to the regular hunting days, 
waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons 

Wild turkey hunting is by permit only. 
Dove hunting on the field trial grounds will be 
prohibited from the second Sunday in 
September through the remainder of the 
hunting season. 

No all terrain vehicles shall be used on the J. 
Robert Gordon Field Trial Area except by 
licensed hunters during deer and dove open 
seasons pursuant to 15ANCAC10D.0102(m). 
Sauratown Plantation Game Land in Stokes County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

Scuppernong Game Land in Tyrrell and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may be 
taken anytime during the Deer With Visible 
Antlers season. 

Shearon Harris Game Land in Chatham and Wake 
counties 

(A) Six Days per Week Area 

(B) Deer of cither sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Waterfowl may be taken only on Tuesdays, 
Fridays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

The use or construction of permanent hunting 
blinds is prohibited. 

South Mountains Game Land in Burke, Cleveland, 
McDowell and Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season, 

Suggs Mill Pond Game Land in Bladen County; 

Hunting is by Permit only. 

Sutton Lake Game Land in New Hanover County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 



(C) 



(D) 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



11 



PROPOSED RULES 



Antlers Season. 
f60) (61) Three Top Mountain Game Land in Asiie County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(6ii (62) Thurmond Chatham Game Land in Wilkes County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program may also take cither-sex 
deer with bow and arrow on the Saturday prior 
to Northwestern bow and arrow season. 

(C) Horseback riding is only allowed durmg June, 
July, and August and on Sundays during the 
remainder of the year except during open 
turkey and deer seasons. Horseback riding is 
allowed only on roads opened to vehicular 
traffic. Participants must obtain a game lands 
license prior to horseback riding on this area. 

(621 (63) Toxaway Game Land in Transylvania County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program may also take deer of 
either sex with any legal weapon on the 
Saturday prior to the first segment of the 
Western bow and arrow season. 

(63)164] Uwharrie Game Land in Davidson, Montgomery and 
Randolph counties 

( A ) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last open six days of the 
applicable Deer With Visible Antlers Season. 

t64) (65) Vance Game Land in Vance County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) The use of dogs, centerfire rifles and handguns 
for hunting deer is prohibited on the Nutbush 
Peninsula tract. 

(651(66] White Oak River Impoundment Game Land in 
Onslow County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) Waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons regardless of the day of the week on 
which they occur. 

f66) (67) Yadkin Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex mav be taken the last six 



open days of the applicable Deer With Visible 
Antlers Season. 

(g) On permitted type hunts deer of either sex may be taken 
on the hunt dates indicated on the permit. Completed 
applications must be received by the Commission not later than 
the first day of September next preceding the dates of hunt. 
Permits shall be issued by random computer selection, shall be 
mailed to the permittees prior to the hunt, and shall be 
nontransferable. A hunter making a kill must tag the deer and 
report the kill to a wildlife cooperator agent or by phone. 

(h) The following game lands and refuges shall be closed to 
all hunting except to those individuals who have obtained a valid 
and current permit from the Wildlife Resources Commission: 

Bertie, Halifax and Martin counties— Roanoke River 

Wetlands; 

Bertie County— Roanoke River National Wildlife Refuge. 

Burke County-John's River Waterfowl Refuge 

Dare County— Dare Game Lands (Those parts of bombing 

range posted against hunting) 

Davie-Hunting Creek Swamp Waterfowl Refuge 

Gaston, Lincoln and Mecklenburg counties— Cowan's Ford 

Waterfowl Refuge. 

Henderson and Transylvania counties-Dupont State Forest 

Game Lands 



Authorirv G.S. 113-134: 113-264: 
J 13-305. 



113-291.2: 113-291.5: 



Notice is hereby given in accordance with G.S. 15UB-21.2 
that the Commission for Health Services intends to amend 
rules cited as 15A NCAC 16A.1104 and .1106. Notice of Rule- 
making Proceedings was published in the Register on January 
15. 1999. 

Proposed Effective Date: Augu.st 1. 2000 

A Public Hearing will be conducted at 9:00 a.m. on August 3. 
1999 at the Ground Floor Hearing Room. Archdale Budding. 
512 N. Salisbury St.. Raleigh. NC. 

Reason for Proposed Action: The North Carolina Cancer 
Control Program seeks to amend its rules to limit functional 
reconstructive surgery to a patient for whom the Program has 
paid for an additional breast cancer treatment, to limit lodging 
and meals to siniations and circumstances where a patient has 
al.so received senices also funded by the Program, and to 
determine sun'ival rate restrictions based upon the time of 
submission of the request, not at the initial stage of the disease. 
Given current medical technological and cancer care changes, 
these amendments will more precisely define allowed services 
and circumstances funded by the Cancer Program. 

Comment Procedures: Comments and other information may 
be submitted m writing to The Cancer Control Program, PO 



12 



NORTH CAROLINA REGISTER 



July I 1999 



14:1 



PROPOSED RULES 



Box 26905, Raleigh. NC 27626-0605. Comments must be 
received no later than August 3. 1999. Copies of the proposed 
rules and information packages may be obtained by contacting 
Phxllis Rochester at (919) 715-3369. 

Fiscal Note: These Rides do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 16 - ADULT HEALTH 

SUBCHAPTER 16A - CHRONIC DISEASE 

SECTION .1100 - CANCER DIAGNOSTIC AND 
TREATMENT PROGRAM 

.1104 COVERED SERVICES 

(a) Covered services shall include diagnostic and treatment 
services for cancer or a condition suggestive of cancer. Physical 
therapy following surgery, where medically indicated, is an 
approved treatment service. 

(b) Service restrictions: 

(1) Dental treatment is not covered except in cases of 
head and neck cancer when necessary for the delivery 
of oncologic care. 

(2) The Program shall nt)t cover late discharge fees, 
transportation, telephone calls, or other miscellaneous 
charges. 

(3) Cosmetic surgery shall not he covered. This does not 
preclude the coverage of functional, reconstructive 
su r gery, surgery when done tt) a patient for whom the 
Program has paid lor iin additional breast cancer 
treatment service. 

(4) Ancillary diagnostic studies shall be authorized only 
when they are determined by the Program to be 
directly related to the confirmation of a diagnosis of 
cancer or are necessary for treatment planning. 

(5) The Program may authorize reimbursement for up to 
two follow-up office visits after completion of 
diagnostic studies or treatment. These visits shall be 
included within the days allowed for diagnostic and 
treatment services. 

(6) Treatment for patients suspected of having cervical 
intraepithelial neoplasia shall be performed in 
accordance with the guidelines of the American 
College of Obstetricians and Gynecologists (ACOG) 
contained in Technical Bulletin Number 1 83 - August 
1993. which is incorporated herein by reference in 
accordance with G.S. 150B-21.6. along with any 
subsequent amendments and editions. Copies of the 
guidelines may be obtained at no cost by calling 
(252)715-3757 or by writing lo the Cancer Control 
Program. P.O. Box 27687. Raleigh, NC 2761 1-7687. 

(7) The use of any course of treatment treatment, 
equip m e n t, d r ug, device o r supply not recognized as 



having scientifically established medical value nor 
accepted as standard medical treatment for the 
condition being treated, as determined by the 
Program, will not be covered. 
(8) Inpatient services shall not be authorized unless the 
hospital is licensed in the State of North Carolina 
under G.S. 131E-5, the Hospital Licensure Act, or 
under conditions of participation for Medicare (Title 

XVIII of the Social Security Act) or Medicaid (Title 

XIX of the Social Security Act), 

(c) Meals and overnight accommodations, in a motel, home, 
boarding house, ambulatory care facility, or similar facility for 
patients receiving covered services on an outpatient basis funded 
by the Program shall be covered by the Program if the patient's 
residence is at least 50 miles from the medical facility providing 
the outpatient services. 

( 1 ) Reimbursement for actual expenses shall not exceed 
the maximum allowable subsistence (meals and 
accommodations) for state employees in the course of 
their official duties, found in G.S. 138-6. based on 
those rates of reimbursement in effect at the time of 
the authorization of these expenses by the Program. 

(2) Program authorization of meals and accommodations 
shall be limited to the maximum number of days of 
service coverage. However, the Program shall cover 
meals and accommodations for weekends between the 
periods during which treatment is authorized. 

(3) Authorization Requests for meals and 
accommodations shall state the number of days which 
will be required, as well as the dates of service on 
which outpatient diagnostic or treatment services shall 
be rendered. 

Authority G.S. 1 30 A- 205. 

.1106 MEDICAL ELIGIBILITY 

(a) To be medically eligible for diagnostic authorization, a 
patient must have a condition strongly suspicious of cancer 
which requires diagnostic services to confirm the preliminary 
diagnosis. The Program shall authorize only those services 
determined by the program to be medically necessary to confirm 
a preliminary diagnosis. 

(b) Diagnostic services for suspected cervical intraepithelial 
neoplasia shall be covered by the Program if there is cytologic 
evidence suggestive of cervical intraepithelial neoplasia. 

(c) A positive pathology report shall be required before 
treatment services can be authorized by the Program. 

(d) Before treatment services may be authorized, the 
attending physician must certify that there is a 25 percent or 
better chance of five-year survival with initial treatment. The 
Program shall use the current five-year relative survival rates 
published by the National Cancer Institute's Surveillance, 
Epidemiology, and End Results (SEER) Program as a guide for 
evaluating requests for treatment. These rates are incorporated 
herein by reference in accordance with G.S. 150B-21.6. along 
with any subsequent amendments and editions. TTiey may be 



14:1 



NORTH CAROLINA REGISTER 



July I, 1999 



13 



PROPOSED RULES 



used by physicians to assist with estimating survival. Copies of 
the rates may be obtained at no cost by calling (9 19)7 15-3575 or 
by writing to the Cancer Control Program, P.O. Box 27687, 
Raleigh, North Carolina 2761 1-7687. 

(e) All requests tor treatment shall be reviewed by the 
Program. Such requests shall be authorized when the Program 
determines that there is at least a 25 percent chance of five-year 
survival with i nit i al treatment and that the services to be 
provided are medically necessary to improve the chance of 
survival. In determining medical eligibility, the Program may 
confer with the patients attending physician, members of the 
Cancer Committee of the North Carolina Medical Society, and 
other physicians trained in the treatment of cancer. 

(f) All requests for chemotherapy shall be accompanied by a 
protocol describing the treatment being requested. 

Authority G.S. I30A-205. 

Notice is hereby given in accordance with G.S. I50B-21 .2 
that the Commission for Health Sen'Ices intends to adopt 
rule(s> cited as 15A NCAC 26C .010J-.0I()7. Notice of Rule- 
making Proceedings was published in the Register on May 14. 
1999. 

Proposed Effective Date: August I. 2000 

A Public Hearing n(7/ he conducted at 9:00 a.m. on August 3. 
1999 at the Archdale Building. Gnnind Floor Hearing Room. 

Reason for Proposed Action: The General Assembly (1995) 
added a new part "Birth Defects" to Article 5 of Chapter 1 30A. 
This new part establishes the Birth Defects Monitoring Program 
within the State Center for Health Statistics, and directs the 
Commission for Health Seirices to adopt rules pertaining to the 
release of confidential information from the numitoring program 
for scientific research. 

These rules cover the major components of the design and 
operation of the Birth Defects Monitoring Program. This 
legislation expanded the scope of birth defects data collection 
activities to include hospital medical records, the scope of these 
proposed rules is broadened to cover monitoring program 
operations related to data access and collection, in addition to 
confidentiality issues. Specific areas addressed by these rules 
are: 1) required skills, training, and e.xpertise of monitoring 
program staff: 2) development, composition, cmd functions of the 
Birth Defects Advisoiy Committee: 3) operational procedures, 
including case definition, data sources, and procedures for 
accessing and abstracting hospital medical records: 4) 
procedures for safeguarding confidentiality of monitoring 
program information: and 5) specific guidelines for the release 
of monitoring program information for scientific research. 

Comment Procedures: Comments, statements, data, and other 
information may be submitted in writing within 60 days after the 
date of publication of this issue of the North Carolina Register. 



Copies of the proposed rules and information package max be 
obtained by contacting the Technical Assistance and 
Certification Group at (91 9) 733-0026. Written comments max 
be submitted to Dr. Robert Meyer, State Center for Health 
Statistics. Division of Public Health. NCDHHS. PO Box 29538, 
Raleigh, NC 27626-0538. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 26 - INFORMATION SERVICES 

SUBCHAPTER 26C - BIRTH DEFECTS MONITORING 
PROGRAM 

SECTION .0100 - MONITORING PROGRAM 

.0101 GENERAL 

(a) These Sections implement the provisions of Senate Bill 
818, 1995 Session of the General Assembly, adding Part 7 to 
Article 5 of G.S. 130(A). This Part authorizes the Commission 
to adopt rules related to the surveillance of birth defects. The 
legislation establishes a Birth Defects Monitoring Program 
within the State Center for Health Statistics. The purpose of the 
monitoring program is to compile, tabulate and publish 
inlbrmation related to the incidence and prevention of birth 
defects. 

(b) The Birth Defects Monitoring Program is administered by 
the State Center for Health Statistics, Department of Health and 
Human Services. PO Box 29538, Raleigh, North Carolina 
27626-0538. 

Authoritx G.S. I30A-13I. 

.0102 DEFINITIONS 

The following definitions shall applv throught)ut this Section: 

( 1 ) "Abstract" refers to a document or documents 
containing information obtained from a patient's 
medical record. 

(2) "Birth Defect" means anv physical, functional or 
chemical abnonnalitv present at birth that is of 
possible genetic or prenatal origin. 

(3) "Case-Finding" is the process used to identify 
potential cases for inclusion in the central registry of 
the Birth Defects Monitciring Program. Potential 
cases may be ascertained through review of medical 
recc)rds, disease indices, logs, vital records, hospital 
discharge summaries, and other sources. 

(4) "Case Report" refers to a document ot documents 
containing inlormalion on a diagnosed birth defect 
reported to the monitoring program by a physician. 

(5) "Central Registry" is the database of birth defect cases 
obtained thrt)ugh the surveillance activities of the 
Birth Defects Monitoring Program. 



14 



NORTH CAROLINA REGISTER 



July 1, 1999 



14:1 



PROPOSED RULES 



16) 

m 
m 
m 



LLU 



"Confidential Information" is any information that 

could be used to reveal, either directly or indirectly, 

the identity of a patient with a birth defect. 

"Department" is the NC Department of Health and 

Human Services. 

"Director" is the Director of' the State Center for 

Health Statistics (SCHS). 

"ICD-9-CM" means the International Classification 

of Diseases. 9th Revision. Clinical Modification. 

Volumes i and 1, US Department of Health and 

Human Services, US Government Printing Office. 

Washington. DC. 

"Institutional Review Board" means a committee for 

the protection of huinan subjects which is approved 

by the US Department of Health and Human Services 

pursuant to Part 46 of Title 45 of the Code of Federal 

Regulations. 

"Licensed Medical Facility" means general acute care 

hospitals and ambulatory surgical facilities licensed 

by the Department of Human Resources pursuant to 

G.S. 131E-77, which regularly pnnide services for 

the diagnosis and treatment of birth defects, genetic 

counseling, or prenatal diagnostic services. 

"Monitoring Program" means the Birth Defects 

Monitoring Program (BDMP) established v\ ithin the 

Department 

"Program Directcir" is the indi\idual directly 

responsible for oversight and operation of the Birth 

Defects Monitoring Program. 

"Program Staff" means employees of the Slate Center 

for Health Statistics or persons providing services to 

SCHS under written contract who arc authorized by 

the director to collect and ha\e access to information 

from the monitoring program. 



Authority- G.S. BOA-131. 

.0103 MONITORING PROGRAM STAFF 

(a) The director of the State Center for Health Statistics shall 
designate an individual to serve as program director of the Birth 
Defects Monitoring Program. The program director shall be 
responsible for administrative oversight of the monitoring 
program and for supervising program staff 

(b) The following general skills and qualifications shall be 
required of program staff 

( 1 ) The program director shall possess masters or 
doctoral level training in the pubic health sciences or 
a closely related field, and experience in data analysis, 
public health surveillance and birth defects. 
Persons who will conduct case-finding and record 



nil 

14) 



Ql 



abstracti(tn shall possess knowledge of basic medical 
terminology and be able to interpret complex medical 
record information. 



.0104 BIRTH DEFECTS ADVISORY COMMITTEE 

(a) The State Health Director shall establish a birth defects 
advisory committee \.o provide practical and scientific advice to 
the monitoring program in implementing an effective birth 
defects surveillance program. 

(b) The advisory committee shall be composed of not more 
than 1 2 members and must include scientific experts in the fields 
of birth defects, genetics, epidemiology, and medicine. At least 
one member must have a background in a ncin-scientific area. 
At least one member must be a representative of the facilities 
from which the data will be c(>llectcd. The Director of the 
monitoring program shall scr\e as ex officio member of the 
advisory committee. 

(c) The birth defects advisory committee shall: 

(1) Provide scientific and medical advice and consultation 
to the monitoring program; 

(2) Make recommendations to the Department or the state 
legislature, as appropriate. 

Authority G.S. 130A-131. 

.0105 SURVEILLANCE OF BIRTH DEFECTS: 
CENTRAL REGISTRY 

(a) The monitoring program shall operate statewide. 

(b) In order for inforinati()n on a child to be included in the 
monitoring program's central registry, the following conditions 
must be met. 



LU 
01 



Authority- G.S. 130A-I31. 



The state oi birth or Utc mother's state ot' residence at 

the time ot birth must ha\c been in Ncirth Carolina. 

The child musi have a birth defect or other specified 

perinatal condition that can adversely affect his or her 

health and development. 

(c) The central registry shall include birth defects occurring 
in a fetal death, miscarriage, or pregnancy termination. 

(d) The coding scheme used by the monitoring program to 
classify birth defects shall be based on a medically recognized 
system, such as ICD-9-CM or the CDC/BPA system used by the 
Centers for Disease Control and Prevention in the Metropolitan 
Atlanta Congenital Defects Program, as described in the report 
titled "Metropolitan Atlanta Congenital Defects Program 
Procedure Manual." dated June. 199,^. 

(e) Tlie program director shall, in consultation with the birth 
defects advisory committee, develop a list of specific birth 
defects to be monitored. In developing this list consideration 
shall be gi\en to Uie folk)wing: 

( 1 > The medical and public health significance of the 
condition, including potential preventabilitv: 

(2) The feasibility ot' obtaining reasonably complete and 
reliable diagnostic infcirmalion on the condition from 
the data sources available to the monitoring program; 
and 

(3) The consistency with birth defects data collected and 
reported by tfie Centers for Disease Control and 
Prevention and by other stale-based birth defects 
surveillance programs. 

(f) The monitoring program may utilize for case 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



15 



PROPOSED RULES 



ascertainment any data source routinely collected by or available 
to the State Center for Health Statistics, such as vital records, 
hospital discharge inlbrmation. and Health Services Inlorination 
System files. 

(g) The monitoring program may, upon request, review and 
abstract inlorination on a diagnosed or suspected birth defect 
from any medical record in a licensed medical facility. When 
obtaining such information the following conditions shall apply: 

( 1 ) The admmistrator. director, or person in charge of 3 
licensed medical facility shall designate one staff 
member as the contact person lor the monitoring 
program. That staff member will coordinate 
scheduled visits by program staff to review disease 
indices, labor and delivery logs, or other case-finding 
data sources. That person will also be responsible for 
arranging \isits by program staff for medical records 
review. 

(2) Monitoring program staff and the contact person shall 
establish a general schedule ot.' case-findmg and 
record review visits. This schedule shall take into 
account the capabilities of the medical facility in 
responding to requests, as well as the expected needs 
and workload of the monitoring program. 

(3) Procedures for record management and the use of 
copiers and other equipment at the medical facility 
shall be agreed upon mth each facility. Monitoring 
program staff shall abide by these procedures at all 
times. 

(4) The medical records and other original materials 
provided hy the medical facility shall not be remo\ed 
from that facility. All information, either on paper or 
m electronic form, which is removed from the 
medical facility shall be transported by secure means 
at aj] times. Abstracts, printouts, notes, and other 
information will be carried in locked briefcases. 

(h) Physicians and other persons inwihed in the diagnosis, 
care, and treatment oi birth delects may report information on i! 
diagnosed birth defect to the monitoring program. Physicians 
and other persons who submit a case report or other inlorination 
to the monitoring prcigram shall be immune from civil or 
criminal liability that might otherwise be incurred or imposed for 
releasing this information based upon invasion of privacy or 
breach of physician-patient confidentiality. 

Authority G.S. 130A-131. 

.0106 CONFIDENTIALITY 

(a) Access to patient-level inl'onnation collected by the 
monitoring program shall be limited to program siafi authorized 
by die doctor. 

(b) All program staff shall be required to sign an agreement to 
actively protect the confidentiality of patient information 
collected through the monitoring program. 

(c) All identifying or potentially identifying information 
collected b\ the inonit()ring pro^zram. including abstracts, case 
reports, computer printouts, notes and other material shall be 
stored in locked offices or in locked file cabinets at all times. 



(d) Central registry files stored in electronic format shall be 
maintained in a passwork-protected local area computer 
network. Only authorized program staff shall have access to this 
information. Access to the data is controlled by the network 
administrator. Back up data files shall be maintained at the State 
Computer Center. This computer system is protected by the 
Resource Allocation Control Facility (RACF) system. 

(e) A publicly accessible data file containing limited patient- 
level information from the central registry may be made 
available. This file may contain the following data items only: 
county of residence, county oi' birth, year of birth, sex of infant, 
race of infant, age of mother, and birth defect diagnoses. All 
other patient inlorination contained in the central registry shall 
be considered confidential and not open to public inspection, 
except as specified in Paragraph (f) of this Rule. 

(f) Clinical information maintained in the central registry may 
be disclosed in the following circumstances, when authorized by 
the Director: 



ill 



lli 



A patient shall have access to review or obtain copies 
of his/her own records. 

Information may be disclosed in response to a valid 
court order pro\ ided. however, that such information 
may not be subject to or disclosed pursuant to 
discovery in any civil action against a hospital or a 
provider of professional health services. 
Information ma\ be disclosed as provided in Rule 
.0107 of this Section. 



Authority G.S. I30A-I31. 



.0107 



RELEASE OF MONITORING PROGRAM 
INFORMATION FOR RESEARCH 

(a) Individuals other than authorized program staff requesting 
access to monitoring program information for research purposes 
must establish a valid scientific interest in order to obtain this 
information. An application requesting access to monitoring 
program information must contain a research protocol and be 
submitted to the Director. The protocol shall contain the 
following information: 



LU 



12) 
ill 



The name and qualifications of the principal 

investigatcir. professional staff and every person who 

will review, analyze, or access the data: 

The purpose of the research; 

The research design and statistical methods to be used 



to analyze the data; 

(4) The proposed benefits to tie derived from such 
research and the potential risk to human subjects: and 

(5) The plans and procedures to maintain the 
confidentiality of information prcnided by the 
mt)nil(M'ing program. 

(h) After the Director receives and apprt)ves the ccnnpleied 
application, the prolcKol shall be evaluated and judged bv an 
institutional review board. Final approval of the protocol shall 
require the approval of both the Director and the institutional 
review hoard, and shall fie based on an evaluaticm of ihe criteria 
listed in Paragraph (c) of this Rule. 

(c) The evaluaticin criteria for approval shall include the 



16 



NORTH CAROLINA REGISTER 



July 7, 1999 



14:1 



PROPOSED RULES 



01 



13] 



following: 

(1) The key investigators shall have significant training 
and experience in biomedical research as 
demonstrated by a history of prior research and 
publication of results in peer-reviewed journals. For 
bona fide student proposals and research carried out 
for educational purposes, faculty committee members 
should possess these qualifications; 
The purpose of the research shall be clearly stated. 
and the hypotheses under investigation shall be 
scientificallvcompelling. as judged by the importance 
of the question relative to the fields of epidemiology. 
medicine, or public health: 

The research design shall be scientifically sound with 
respect to exposure measurement, assessment and 
control of other relevant risk factors, and statistical 
power. Statistical techniques to be used in the 
analysis shall be clearly described and appropriately 
applied; 

The benefits of the proposed research, and the 
potential risk to individuals whose identity may be 
disclosed or who are involved as study participants 
must he clearly stated; 

Plans of how the investigators propose to maintain the 
confidentiality and integrity of the inlormation 
pnnidcd by the monitoring program shall be clearly 
detailed and must adequately protect the security oi' 
the data; and 

The hypothesis or topic to be studied must not already 
be under in\estigation. 

(d) Modifications to the protocol or other terms and 
conditions may be required before releasing any data. 

(e) If the applicant intends to contact individuals whose 



(4) 



151 



\ m 



(6) 



names were provided by the monitoring program, the protocol 
must contain strong methodologic support for the need for such 
contact. 

iXl If the protocol is approved by the Director and the 
institutional review board, then the researcher shall be 
considered to have established a valid scientific interest as 
required. Before any data are released, the researcher will be 
required to submit to the Director a signed written statement 
guaranteeing the lollowing: 

( 1 ) The applicant shall not allow any person other than 
those identified in the protocol to access, use or 
otherwise rev iew the data supplied by the monitoring 
program. 

(2) There shall be no deviation from the protocol without 
explicit advance review and approval by the Director 
and the institutional review board. 

(3) Information obtained in the course of activities 
undertaken or supported using the data from the 
monitoring program shall not be used for any purpose 
other than the exact purpose for which k was 
supplied. 

(4) Any confidential or potentially identifying 
intbrmation supplied by the monitoring program 
which IS copied or otherwise transferred shall be 
destroyed upon completion of the study unless 
otherwise stated in the research protocol. 

(g) Upon completion of the study, the researcher shall submit 
one copy of the completed research paper or abstract to the 
monitoring program. 

Aiithorin G.S. IM)A-I3l. 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



17 



TEMPORAR Y R ULES 



The Codifier of Rules has entered the following temporal-} riile(s) in the North Carolina Administrative Code. Pursuant to G.S. 
150B-21 . 1(e), publication of a temporary rule in the North Carolina Register sen'es as a notice of rule-making proceedings 
unless this notice has been previously published hy the agency. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 



Rule-making Agency: 

Commission 



North Carolina Marine Fisheries 



Rule Citation: ISA NCAC 3H .0101. .0103: 31 .0101, .0105- 
.0106, .0114, .0120: 3J.0103-.0104, .0110. .030! -.0302, .0305: 
3K .0101, .0105-.0106, .0202, .0502: 3L .0201. .0206: 3M 
.0202. .0301. .0501. .0503-.0504. .0507, .0511. .0513. .0515- 
.0516: 30 .0101:01 11. .0201. .0301 -.03 10. 

Effective Date of Temporary Rules: July 1, 1999 

Findings for Temporary Rules Reviewed and Approved by: 

Beecher R. Gray 

Authority for the rule-making: G.S. 113-134: 1438-289.52: 
Section 5.2 of Session Law 1998-225. 

Reason for Proposed Action: The Fisheries Reform Act of 
1997 and its amendments (House Bill 1448) requires a complete 
review and in most cases, a rewrite, of the Marine Fisheries 
Laws. These revisions include separation of gear and limits for 
conmiercial license holders and recreational commercial gear 
license holders. 

Comment Procedures: Written comments are encouraged and 
may be submitted to the MFC. Juanita Gaskill. PO Box 769. 
Morehead Cit}: NC 28557. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3H - IDENTIFICATION AND 
DELEGATION OF AUTHORITY 

SECTION .0100 - IDENTIFICATION INFORMATION 

.0101 IDENTIFICATION INFORMATION 

t^) The Marine Fisheries Div i s io n c i f the De p a r tme n t of 
Environment. Health, and Natu r al Resources mainta i ns its office 
headqua r ters at tiie Ma rin e Fi sh e ri e s Build i ng. .'^441 Arendell 
St.. Post Off i ce Box 7 69 , Morehead City. North Carolina 28557. 
Tel e phone (919) 726-7021. or 1-800-682-2632. toll f r ee in 



tin 



The — coas t al 



a r ea — rs — divided — rrrto — three 
management/enforcement dis tri cts. — each — with — a — Regional 
Supervisor and — an — Enfo r cement Captain — and — a District 
Operations Office. The District Offices are: 

t+l Norther n District. 1 367 U.S. 1 7 Sou t h. El iz ab e th C i ty. 



NC 27909. Telephone (919) 264-3911. or 

1-800-338-7805. toll fre e in No r th Ca r olina. 
(^ Cent r al D i s tr ict. Post Office Box 769. Morehead City, 

NC 28557. Telephone (919) 726-7021. or 

1-800-682-2632. toll free in North Carolina. 



O) Southern District, 1 27 Cardinal D r . Ext., Wilmington. 

NC 28405. Telephone (910) 395-3900^ or 

1-800-248-4536. toll f r ee i n No r th Ca r olina. 

History Note: Authority G.S. 1 13-134: 
Eff. January 1. 1991: 
Amended Eff. March 1. 1994: 
Temporan' Repeal Eff. Julx I. 1999. 

.0103 PROCLAMATION AUTHORITY OF 
FISHERIES DIRECTOR 

t3r) The following speciHc fu n ctio n s have bee n del e gated by 
the Sec re tary to the Fisheries Director: 

(+) The autho r ity to r e tu r n confiscated property when 
satisfied that the ow n e r of such p r operty had no 
knowledge of the use of the property for illegal 



t+) 
tfr) 



purposes pursuant to G.S. 113-137; 

Tlie autho ri ty to se l ect license ag e nts pursuant to G.S. 



113-151.1; 

The autho r ity to suspend or revoke all licenses 

pursuant t o G.S. 1 13-166; 

The authority to grant, renew or te r mi n ate sh e llfis h 

l e as e s p ur suant to G.S. 113-202. 1 13-202.1 and 

113-202.2; 

The authority to settle claims of ow n e r ship o f 

e stua rine bottoms pursuant to G.S. 1 13-206; and 

The autho ri ty to issu e Scientific Collecting Peimits 

pursuant to G.S. 1 13-261. 
(a)tin The proclamation authority granted to the Fisheries 
Director by the Marine Fisheries Commission within this 
Chapter includes the authority to close as well as open seasons 
and areas, to establish conditions governing various activities, 
and to reduce or increase the size and harvest limits from those 
stated in rule when specifically authorized. It is unlawful to 
violate the provisions of any proclamation issued by the 
authority of Marine Fisheries Commission Rule. 

(b) Unless specific \ariable conditions are set forth vn a rule 
grantiuji proclamation authority to the Fisheries Director, 
variable conditit)ns iriiiecrm!:: the use of the Fisheries Director's 
proclamation authorit\ ma\ include anv of the follovving: 
compliance with changes mandated by the Fisheries Reform Act 
and its amendments, bic^logical impacts. en\ironmental 
conditions, compliance v\ith Fishery Manatiement Plans, user 
conllicts, bvcatch issues and variable spatial distributions. 

History Note: Authoritv G.S. 113-LU: 1 1 3-182: 1 13-221 : 



18 



NORTH CAROLINA REGISTER 



July 1, 1999 



14:1 



TEMPORARY RULES 



143B-289.52: 

Eff. Janiian- J. 1991: 

Amended Ejf. March I. 1994: September 1. 1991: 

Temoorarx Amendment Eff. Julx 1, 1999. 

SUBCHAPTER 31 - GENERAL RULES 

SECTION .0100 - GENERAL 

.0101 DEFINITIONS 

(a) All definitions set out in G.S. 1 I 3. Subchapter IV apply 
to this Chapter. 

(b) The following additional terms are hereby defined: 

(1) Commercial Fishing Equipment or Gear. Equipment. 
All fishing equipment used in coastal fishing waters 
except: 

(A) Seines less than 30 +2 feet in length; 

(B) Collapsible crab traps, a trap used for taking 
crabs with the largest open dimension no larger 
than 1 8 inches and that by design is collapsed 
at all times when in the water, except when it is 
being retrieved from or lowered to the bottom; 

(C) Spears; Spears. Hawaiian slings or similar 
devices which propel pointed implements by 
mechanical means, including elastic tubing or 
bands, pressurized gas or similar means, when 
used in the Atlantic Ocean beyond three statute 
miles; 

(D]f€) A dip net having a handle not more than eight 

feet in length and a hoop or frame to which the 

net is attached not exceeding 60 inches along 

the perimeter; 
lE)t©) Hook-and-line and bait-and-line equipment 

other than multiple-hook or multiple-bait 

trotline; 
(F)tE) A landing net used to assist in taking fish when 

the initial and primary method of taking is by 

the use of hook and line; and 
(G)tF) Cast Nets. 

(2) Fixed or stationary net. A net anchored or staked to 
the bottom, or some structure attached to the bottom, 
at both ends of the net. 

(3) Mesh Length. The diagonal distance from the inside 
of one knot to the outside of the other knot, when the 
net is stretched hand-tight. 

(4) Possess. Any actual or constructive holding whether 
under claim of ownership or not. 

(5) Transport. Ship, can'y. or cause to be carried or 
moved by public or private canier by land. sea. or air. 

(6) Use. Employ, set. operate, or permit to be operated or 
employed. 

(7) Purse Gill Nets. Any gill net used to encircle fish 
when the net is closed by the use of a purse line 
through rings located along the top or bottom line or 
elsewhere on such net. 

(8) Gill Net. A net set vertically in the water to capture 



fish by entanglement by the gills in its mesh as a 
result of net design, construction, mesh size, webbing 
diameter or method in which it is used. 
(9) Seine. A net set vertically in the water and pulled by 
hand or power to capture fish by encirclement and 
confining fish within itself or against another net. the 
shore or bank as a result of net design, construction, 
mesh size, webbing diameter, or method in which it is 
used. 

(10) Internal Coastal Waters or Internal Waters. All 
coastal fishing waters except the Atlantic Ocean. 

(11) Channel Net. A net used to take shrimp which is 
anchored or attached to the bottom at both ends or 
with one end anchored or attached to the bottom and 
the other end attached to a boat. 

(12) Dredge. Adevice towed by engine power consisting 
of a frame, tooth bar or smooth bar, and catchbag 
used in the harvest of oysters, clams, crabs, scallops, 
or conchs. 

(13) Mechanical methods for clamming. Includes, but not 
limited to. dredges, hydraulic clam dredges, stick 
rakes and other rakes when towed by engine power, 
patent tongs, kicking with propellers or deflector 
plates with or without trawls, and any other method 
that utilizes mechanical means to harvest clams. 

(14) Mechanical methods for oystering. Includes, but not 
limited to. dredges, patent tongs, stick rakes and other 
rakes when towed by engine power and any other 
method that utilizes mechanical means to harvest 
oysters. 

(15) Depuration. Purification or the removal of 
adulteration from live oysters, clams, and mussels by 
any natural or artificially controlled means. 

(16) Peeler Crab. A blue crab that has a soft shell 
developing under a hard shell and having a definite 
pmk. white, or red line or riin on the outer edge of the 
back fin or flipper. 

(17) Length of finfish. 

(A) Total length is detennined by measuring along 
a straight line the distance from the tip of the 
snout with the mouth closed to the tip of the 
compressed caudal (tail) fin. 

(B) Fork length is determined by measuring along 
a straight line the distance from the tip of the 
snout with the mouth closed to the middle of 
the fork in the caudal (tail) fin. 

(C) Fork length for billfish is measured from the 
tip of the lower jaw to the middle of the fork of 
the caudal (tail) fin. 

(18) Licensee. Any person holding a valid license from 
the Department to take or deal in marine fisheries 
resources. 

(19) Aquaculture operation. An operation that produces 
artificially propagated stocks of marine or estuarine 
resources or obtains such stocks from authorized 
sources for the purpose of rearing in a controlled 



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July I, 1999 



19 



TEMPORARY RULES 



environment. A controlled environment provides and 
maintains throughout the rearing process one or more (21) 

of the following: predator protection, food, water 
circulation, salinity, or temperature controls utilizing 
proven technology not found in the natural (22) 

environment. 
(20) Critical habitat areas. The fragile estuarine and marine 
areas that support juvenile and adult populations of 
economically important seafood species, as well as (23) 

forage species important in the food chain. Critical 
habitats include nursery areas, beds of submerged 
aquatic vegetation, shellfish producing areas, 
anadromous fish spawning and anadromous fish (24) 

nursery areas, in all coastal fishing waters as 
determined through marine and estuarine survey 
sampling. Critical habitats are vital for portions, or 
the entire life cycle, including the early growth and 
development of important seafood species. 

(A) Beds of submerged aquatic vegetation are 
those habitats in public trust and estuarine 
waters vegetated with one or more species of 
submerged vegetation such as eelgrass (Zostera 
marina), shoalgrass (Halodule wrightii) and 
widgeongrass (Ruppia manimia). These 
vegetation beds occur in both subtidal and 
intertidal zones and may occur in isolated 
patches or cover extensive areas. In either 
case, the bed is defined by the presence of 
above-ground leaves or the below-ground 
rhizomes and propagules together with the 
sediment on which the plants grow. In 
defining beds of submerged aquatic vegetation, 
the Marine Fisheries Commission recognizes 
the Aquatic Weed Control Act of 1991 (G.S. 
113A-220 et. seq.) and does not mtend the 
submerged aquatic vegetation definition and its 
implementing rules to apply to or conflict with 
the non-development control activities 
authorized by that Act. 

(B) Shellfish producing habitats are those areas in 
which economically important shellfish, such 
as, but not limited to clams, oysters, scallops, 
mussels, and whelks, whether historically or 
currently, reproduce and survive because of 

such favorable conditions as bottom type, (25) 

salinity, currents, cover, and cultch. Included 
are those shellfish producing areas closed to 
shellfish harvest due to pollution. 

(C) Anadromous fish spawning areas are defined 
as those areas where evidence of spawning of 
anadromous fish has been documented by 
direct observation of spawning, capture of 
running ripe females, or capture of eggs or 
early larvae. 

(D) Anadromous fish nursery areas are defined as (26) 
those areas in the riverine and estuarine 
systems utilized b\' post-lar\al and later 



juvenile anadromous fish. 
Intertidal Oyster Bed. A formation, regardless of size 
or shape, formed of shell and live oysters of varying 
density. 

North Carolina Trip Ticket. Multiple-part form 
provided by the Department to fish dealers who are 
required to record and report transactions on such 
forms. 

Transaction. Act of doing business such that fish are 
sold, offered for sale, exchanged, bartered, distributed 
or landed. The point of landing shall be considered a 
transaction when the fisherman is the fish dealer. 
Live rock. Living marine organisms or an assemblage 
thereof attached to a hard substrate including dead 
coral or rock (excluding mollusk shells). For 
example, such living marine organisms associated 
with hard bottoms, banks, reefs, and live rock may 
include, but are not limited to: 
(A) Animals: 

(i) Sponges (Phylum Porifera); 
(ii) Hard and Soft Corals, Sea Anemones 
(Phylum Cnidaria): 
(I) Fire corals (Class Hydrozoa); 
(II) Gorgonians, whip corals, sea 
pansies, anemones, Solenastrea 
(Class Anthozoa); 
(iii) Bryozoans (Phylum Bryozoa); 
(iv) Tube Worms (Phylum Annelida): 
(I) Fan worms (Sabellidae): 
(II) Feather duster and Christmas tree 

worms (Serpulidae); 
(HI ) Sand castle worms 
(Sabellaridae). 
( v ) Mussel banks (Phylum 

Mollusca:Gastropoda); 
(vi) Colonial barnacles (Arthropoda: 
Crustacea: Megabalanus sp.). 

Coralline algae (Di\'ision Rhodophyta); 
Acetabularia sp., Udotea sp.. Halimeda 
sp., Caulerpa sp. (Division 
Chlorophyta); 
( iii ) Sargassum sp., Dictyopteris sp., Zonaria 
sp. (Division Phaeophyta). 



(B) Plants: 
(i) 
(li) 



Coral 

(A) 

(B) 



Fire corals and hydrocorals (Class Hydrozoa): 

Stony corals and black corals (Class Anthozoa. 

Subclass Scleractinia); 
(C) Octocorals;Gorgonian corals (Class Anthozoa. 

Subclass Octocorallia): 
(i) Sea fans (Gorgonia sp.); 

(ii) Sea whips (Leptogorgia sp. and 
Lophogorgia sp.); 

(iii) Sea pansies (Renilla sp.). 
Shellfish production on leases and franchises: 
(A) The culture of oysters, clams, scallops, and 

mussels, on shellfish leases and franchises 



20 



NORTH CAROLINA REGISTER 



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14:1 



TEMPORARY RULES 



(27) 



(28) 



(29) 



(30) 



(31) 

(32) 
(33) 



(34) 



(35) 



(36) 

Oil 
(38) 
(39) 



from a sublegal harvest size to a marketable 
size. 
(B) The transplanting (relay) of oysters, clams, 
scallops and mussels from designated areas 
closed due to pollution to shellfish leases and 
franchises in open waters and the natural 
cleansing of those shellfish. 
Shellfish marketing from leases and franchises. The 
harvest of oysters, clams, scallops, mussels, from 
privately held shellfish bottoms and lawful sale of 
those shellfish to the public at large or to a licensed 
shellfish dealer. 

Shellfish planting effort on leases and franchises. The 
process of obtaining authorized cultch materials, seed 
shellfish, and polluted shellfish stocks and the 
placement of those materials on privately held 
shellfish bottoms for increased shellfish production. 
Pound Net. A fish trap consisting of a holding pen, 
one or more enclosures, and a lead or leaders. The 
lead(s), enclosures, and holding pen are not conical, 
nor are they supported by hoops or frames. 
Educational Institution. A college, university or 
community college accredited by a regional 
accrediting institution. 

Long Haul Operations. A seine towed between two 
boats. 

Swipe Net Operations. A seine towed by one boat. 
Bunt Net. The last encircling net of a long haul or 
swipe net operation constructed of small mesh 
webbing. The bunt net is used to form a pen or pound 
from which the catch is dipped or bailed. 
Responsible party. Person who coordinates, 

supervises or otherwise directs operations of a 
business entity, such as a corporate officer or 
executive level supervisor of business (ipcrations and 
the person responsible for use oi the issued license m 
compliance with applicable laws and regulations. 
New fish dealer. Any fish dealer makina application 
for a fish dealer license who did not possess a valid 
dealer license for the previous license year in that 
name or ocean pier license in that name on June 30. 
1999. For purposes of license issuance, adding new 
categories to an existing fish dealers license does not 
constitute a new dealer. 



(40) 



Tournament Organizer. The person who coordinates, 

supervises or otherwise directs a recreational fishing 

tournament and [s the ht)lder of the Recreational 

Fishing Tournament License. 

Holder. A person who has been lawfully issued in 

their name a license, permit, franchise, lease, or 

assignment. 

Recreational Purpose. A fishing activity has a 

recreational purpc^se U ii is not a commercial fishing 

operation as defined in G.S. I I3-I6S. 

Recreational Possession Limit. Includes, but is not 

limited to, restrictions on size, quantity, season, time 



trUJ 
(42) 
(43) 



(44) 



(45) 
(46) 

(47 



(48) 



period, area, means, and methods where take or 
possession is for a recreational purpose. 
Attended. Being in a vessel, in the water or on the 
shore immediately adjacent to the gear and 
immediately available to work the gear and within 
100 yards of any gear in use by that person at al] 
times. Attended does not include being in a building 
or structure. 



Commercial Quota. Total quantity of fish allocated 
for harvest taken by commercial fishing operations. 
Recreational Ouota. Total quantity of fish allocated 
for harvest taken for a recreational purpose. 
Office of the Division. Physical locations of the 
Division conducting license transactions in the cities 
of Wilmington, Washington, Morehead City, 
Columbia, Wanchese and Elizabeth Citv, North 
Carolina. Other businesses or entities designated by 
the Secretary to issue Recreational Commercial Gear 
Licenses are not considered Offices of the Division. 
Land: 

(A) For purposes of trip tickets, when fish reach a 
licensed seafood dealer, or where the 
fisherman is the dealer, when the fish reaches 
the shore or a structure connected to the shore. 



IB) 



For commercial fishing operaticins, when fish 
reach the shore or a structure connected to the 
shore. 



(C) For recreational fishing operations, when fish 

arc retained in possession by the fisherman. 
Master. Captain o| a ncsscI or one who commands 
and has c(Mitr(>l, authority, or power over a vessel. 
Regular Closed Oyster Season. The regular closed 
oyster season occurs from May 15 through October 
15, unless amended by the Fisheries Director through 
proclamati(^n authority. 

Assignment. Temporary transferi al to another person 
of privileges under a license for which assignment is 
permitted. The person assigning the license delegates 
the privileges permitted under the license to be 
exercised by the assignee, but retains the power to 
revoke the assignment at any time, is still the 
responsible party foillK license. 
Transfer. Permanent transterral to another person of 
pri\ilcges under a license for which transfer is 
pemiillcd. The person transferring the license retains 
no rights or interest under the license transferred. 



History Note: Aiithontx G.S. 1 13-LU: 143B-289.52: 

Ejf.Jamicin I. IWI: 

Amended Eff. March I. 19^5: March I. 1994: October I. 1993: 

July /, 1993: 

Recodified from 15A NCAC 31 .0001 Eff. December 17. 1996: 

Amended Eff. April 1. 1999: Aiifiii.'it I. 1998: April 1. 1997: 

Temporary Amendment Eff. July l_^ 1999. 

.0105 LEAVING DEVICES UNATTENDED 



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July 1, 1999 



21 



TEMPORARY RULES 



(a) It is unlawful to leave stakes, anchors, nets, buoys, or 
iloating devices in any coastal fishing waters when such devices 
are not being employed in fishing operations except as otherwise 
provided by rule or General Statute. 

(b) It is unlawful to leave pots in any coastal fishing waters 
for more than seven tO consecutive days, when such pt)ts are not 
being employed in fishing operations, except upon a timely and 
sufficient showing of hardship as defined in Subparagraph (b) 
(2) of this Rule or as otherwise provided by General Statute. 

( 1 ) Agents of the Fisheries Director may tag pots with a 
device approved by the Fisheries Director to aid and 
assist in the investigation and identification of 
unattended pots. Any such device attached to a pot by 
agents of the Fisheries Director must be removed by 
the individual utilizing the pot within seven W days 
of attachment in order to demonstrate that the pot is 
being employed in fishing operations. 

(2) For the purposes of Paragraph (b) of this Rule only, a 
timely and sufficient showing of hardship in a 
commercial fishing operation shall be written notice 
given to the Fisheries Director that a mechanical 
breakdown of the owner's vessel(s) currently 
registered with the Division of Marine Fisheries 
licensed under G.S. 1 13-168.6, 1 13-152, or the death, 
illness or incapacity of the owner of the pot or his 
immediate family prevented or will prevent 
employing such pots in fishing operations more than 
seven W consecutive days. The notice, specifying the 
time needed because of hardship, shall be received by 
the Fisheries Director before any pot is left in coastal 
fishing waters for seven +6 consecutive days without 
being employed in fishing operations, and shall state, 
in addition to the following, the number and specific 
location of the pots, and the date on which the pots 
will be employed in fishing operations or removed 
from coastal tlshmg waters: 

(A) in case of mechanical breakdown, the notice 
shall state the commercial fishing vessel 
registration number, owner ' s N.C. motor boat 
registration number of the disabled vessel, dale 
disabled, arrangements being made to repair 
the vessel or a copy of the work order showing 
the name, address and phone number of the 
repair facility; or 

(B) in case of the death, illness or incapacity of the 
owner of the pot or his immediate family, the 
notice shall state the name of the owner or 
immediate family member, the date of death, 
the date and nature of the illness or incapacity. 
The Fisheries Director may require a doctor "s 
verification of the illness or incapacity. 

(3) The Fisheries Director may, by proclamation, modifs 
the seven day requirement, ij necessarv due to 
hurricanes. se\ere weather or other variable 
conditions. 



under this Rule within 14 days of the expiration of the hardship 
shall be violation of this Rule. 

(c) It is unlawful to set or have any fishing equipment in 
coastal fishing waters in violation of this Section or which 
contains edible species of fish unfit for human consumption. 

History Note: Authority G.S. 113-134; 1 1 3-1 3: 11 3-182: 

143B-289.52: 

Eff. January 1, 1991: 

Amended Ejf. March 1.1996: 

Recodified from ISA NCAC 31 .0005 Eff. December 17. 1996: 

Amended Eff. April 1 . 1997: 

Temporary Amendment Eff. Julx 1_^ 1999. 

.0106 SCIENTIFIC, EDUCATIONAL, OR OFFICIAL 
COLLECTING PERMIT 

(a) It is unlawful to take any marine or estuarine species for 
scientific purposes which is out of season or otherwise protected 
without first securing a scientific collecting permit from the 
Secretary. If the Secretary determines that the request is for a 
valid scientific purpose and will not result in a significant 
adverse effect on fisheries management, the permit may be 
issued. Such permit will be subject to any restrictions 
concerning areas, times, and sampling methods as the Secretary 
deems appropriate. 

ib] It [s unlawful for persons who haxe been issued an 
educational, scientific, or official collecting permit to fail to keep 



ji the pennit. This 

submitted to the Division of Marine 



records according to the conditions 

information shall be _ 

Fisheries on an annual basis unless otherwise specified on the 
permit. 

Hi.'itorx Note: Authority G.S. 113-134: 113-169.3: 113-182: 

113-261: I43B-289.52: 

Eff. January 1. 1991: 

Recodified from ISA NCAC 3! .0006 Eff. December 17. 1996: 

Temporary Amendment Eff. Julx l_^ 1999. 

.0114 RECORDKEEPING REQUIREMENTS 

(a) It is unlawful for a fish dealer: 

( 1 ) To fail to accurately and legibly complete all 
mandatory items on the North Carolina trip ticket for 
each transaction transaction: and submit the tri^ ticket 
in accordance with G. S^ 1 13-168.2: 

(2) To fail to provide to the Division a completed no 
transaction form by the tenth day of the following 
month when no transactions occurred for a month: 



(3) To fail to keep aU tri^ tickets and all supporting 



Failure to employ in fishing operations or remove from coastal 
fishing waters all pots for which notice of hardship is received 



documentation for each transacti(Mi including receipts. 

checks, bills of lading, records and accounts for a 

period oi not less than three years. 

(b) It is unlawful for a seller licensed under Article 14A €j:^ 

1 13- 153 or G.S. 1 13-154.1 or d onor to fail to provide h) the fish 

dealer, at the time of transaction, the following: 

(1) A current and valid license (>r permit to sell the type 
of fish being offered and [f a vessel is used, the 



22 



NORTH CAROLINA REGISTER 



Julv L 1999 



14:1 



TEMPORARY RULES 



commercial fishing vessel registration; and A — valid 

e ii doisement to s e ll tor t h e fishi n g opera t ion used to tak e tiie 
tisn; 

(2) Complete and accurate information on on. b ut not 
limit e d t o. harvest method and area of catch and other 
information required hv the Division, catch: 

(cj It js unlawful to transport fish without having ready at 
hand for inspection a hill of consignment, bill (if lading, or other 
shipping documentation prcnided by the shipping dealer 
showing thereon the name of the consi gnee. name of the shipper. 
the date of the shipment, and the quantity of each species of fish 
shipped. In the event the fishennan taking the fish is also a 
dealer and ships from the point of landing, all shipping records 
shall be recorded at the point of landing. Fishermen who 
transport their fish directly to dealers are exempt from this 
Paragraph of this Rule. 

(d) It is unlawful to export fish landed m the State in a 
commercial fishing operation without a North Carolina licensed 
fish dealer completing all the record keeping requirements in 
G.S. 113-168.2 (1). 

(ej It is unlawful to offer for sale fish purchased from a 
licensed fish dealer v\ ithciut having ready at hand for inspection 
written documentation of purchase showing thereon the name of 
the licensed dealer, name of the purchaser, date of the purchase. 
and the quantity of each species purchased. 

(jj It IS unlawful for a holder of a Fish Dealer's License to 
ha\e in possession at a licensed location fish viithout written 
documentation from a licensed fish dealer or a completed North 
Carolina Marine Fisheries Trip Ticket to show the quantity and 
origin of all fish. 

HistonNote: AuthorityG.S. 113-134:113-168.2: 113-168.3: 
113-169.3: 113-170: 113-170.3:113-170.4: 1438-289.52: 
Eff. March 1. 1994: 

Recodified from ISA NCAC 31 .0014 Eff'. December 17. 1996: 
Temporan- Amendment Eff. Julx 1_^ 1999. 

.0120 POSSESSION OR TRANSPORTATION LIMITS 

Ijij It is unlawful to possess any species of fish which is 
subject to size or harvest restrictions, while actively engaged in 
a fishing operation, unless all fish are m compliance with the 
restrictions for the waterbodv and area being fished. 

(b) It is unlawful to import into the state species of fish native 
to North Carolina for sale m North Carolina that do not meet 
established si/e limits, except as provided m 15A NCAC 3K 
.0202 (c) and .0305. 

Histon- Note: Authority G.S. 1 13-134: 1 13-170: 113-170.4: 
113-170.5: J 13-182: I43B-289.52: 
Temix>ran Adoption Eff. Jiilx L^ 1999. 

SUBCHAPTER 3J - NETS, POTS. DREDGES, AND 
OTHER FISHING DEVICES 

SECTION .0100 - NET RULES, GENERAL 



.0103 GILL NETS, SEINES, IDENTIFICATION, 
RESTRICTIONS 

(a) It is unlawful to use a gill net with a mesh length less than 
IVi inches. 

(b) The Fisheries Director may. by proclamation, limit or 
prohibit the use of gill nets or seines in coastal waters, or any 
portion thereof, or impose any or all of the following restrictions 
on the use of gill nets or seines: 



(1) 
(2) 
(3) 
(4) 
(5) 



Specify area. 

Specify season. 

Specify gill net mesh length. 

Specify means/methods. 

Specify net number and length. 

(c) It is unlawful to use fixed or stationary gill nets in the 
Atlantic Ocean, drifi gill nets in the Atlantic Ocean for 
recreati(>nal purposes, or any gill nets in internal waters unless 
nets are marked by attaching to them at each end two separate 
yellow buoys which shall be of solid foam or other solid buoyant 
material no less than five inches in diameter and no less than 
five inches in length. Gill nets which are not connected together 
at the top line shall be considered as individual nets, requiring 
two buoys at the end of each individual net. Gill nets connected 
together at the top line shall be considered as a continuous net 
requiring two buoys at each end of the continuous net. Any other 
marking buoys on gill nets used for recreational purposes shall 
be vell(n\ except one addititinal bucn'. any shade erf hot pink in 
color, ccmstructed as specified in Paragraph (c> of this Rule, 
shall be added at each end oi' each indi\idual net. Any other 
marking buoys on g\U nets used m commercial fishing 
operations shall be yellow except that one additional 
identification buoy ivf any color or any combination of colors, 
except any shade of hot pink, may be used at either or both ends. 
A n y other ma r king b uoys o n g i ll n ets shal l b e yellow except that 
one additio n al — identification buoy of any color or any 
combi n at i o n of colors may h e used at either or both ends. The 
owner shall always be identified on a buoy on each end either by 
using engraved buoys or by attaching engraved metal or plastic 
tags to the buoys. Such identification shall include owner's last 
name and initials and \{ a \esscl is used, one of the follow ing: 

( 1 ) Owner's N.C. motor boat registration number, or 

(2) Owner's U.S. vessel documentation name, name, or 
t3l Ow n e r 's last name a n d initials. 

(d) It is unlawful to use gill nets: 

( 1 ) Within 200 yards of any pound net with lead and 
pound or heart in use; 

(2 ) From March I through October 3 1 in the Intracoastal 
Waterway within \5() yards of any railroad or 
highway bridge. 

(e) It is unlawful to use gill nets within 100 feet either side of 
the center line of the Intracoastal Waterway Channel south of 
Quick Flasher No. 54 in Alligator Rn er at the southern entrance 
to the Intracoastal Waterway to the South Carolina line, unless 
such net is used in accordance with the following conditions: 

( 1 ) No more than two gill nets per boat may be used at 
any one time; 

(2) Any net used must be attended by the fisherman from 



14:1 



NORTH CAROLINA REGISTER 



Julv 1, 1999 



23 



TEMPORARY RULES 



a boat who shall at no time be more than 100 yards 
from either net; and 
(3) Any individual setting such nets shall remove them, 
when necessary, in sufficient time to permit 
unrestricted boat navigation. 

(f) It is unlawful to use drift gill nets in violation of 15A 
NCAC 3J .0101(2) and Paragraph {&) (ej of this Rule. 

(g) It is unlawful to use gill nets from May 1 through October 
3 1 with a mesh length of less than five inches in internal coastal 
waters (including joint waters) unless attended. In order to be 
considered attended, the fishermen must be within 100 yards of 
any net employed by that fisherman. 

History Note: Authority G.S. 113-134: 113-173: 113-182: 

113-221: 143B-289.52: 

Ejf.Jamiaty I. 1991: 

Amended Eff. August 1. 1998: March 1. 1996: March 1. 1994: 

July I. 1993: September I. 1991: 

Temporary Amendment Eff. July j^ 1999: October 22. 1998. 

.0104 TRAWL NETS 

(a) It is unlawful to use trawl nets for the taking of finfish in 
internal waters, except that it shall be permissible to take or 
possess finfish incidental to crab or shrimp trawlmg in 
accordance with the following limitations: 

( 1 ) It is unlawful to possess aboard a vessel while using 
a trawl in internal waters more than 300 pounds of 
finfish from December 1 through February 28 and 
1.000 pounds of finfish from March 1 through 
November 30. 

(2) The Fisheries Director may, by proclamation, close 
any area to trawling for specific time periods in order 
to secure compliance of this Rule. 

(b) It is unlawful to use trawl nets: 

( 1 ) In internal coastal waters, between one hour after 
sunset Friday and one hour before sunset on Sunday; 

(2) For the taking of oysters; 

(3) In Albemarle Sound and its tributaries; 

(4) In the areas described in ISA NCAC 3R .0106; 

( 5 ) From December I through February 28 from one hour 
after sunset to one hour before sunrise in the 
following areas: 

(A) In Pungo River north of a line beginning at a 
point on Wades Point 35° 23' 17" N - 76° 34' 
30" W; running 060° (M) to a point on 
Currituck Point 35° 24' 35" N - 76° 32' 1 9" W. 

(B) In Pamlico River west of a line beginning at a 
point on the south shore near Fulford Point 35° 
19' 52" N - 76° 35' 56" W; running 026° (M) 
through Flashing Red Marker " 1 " to a point on 
Wades Point 35° 23' 17" N - 76° 34' 30" W. 

(C) In Bay River west of a line beginning at a point 
on Maw Point 35° 09' 02" N - 76° 32' 10" W; 
running 021° (M) through Flashing Green 
Marker " 1 " to a point on Bay Point 35° 1 1' 01 " 
N-76°3r35" W. 

(D) In Neuse River west of a line beeinninti at a 



point off Cherry Point 34° 56' 17" N - 76° 48' 
37" W; running 020° (M ) through Flashing Red 
Marker "9" to a point off Wilkinson Point 34° 
57' 58" N- 76° 48' 22" W. 
(E) In New River all waters upstream of the N.C. 
Highway 172 Bridge. 

(c) Minimum mesh sizes for shrimp and crab trawls are 
presented in 15A NCAC 3L .0103 and .0202. 

(d) The Fisheries Director may, with prior consent of the 
Marine Fisheries Commission, by proclamation, require bycatch 
reduction devices or codend modifications in trawl nets to 
reduce the catch of finfish that do not meet size limits or are 
unmarketable as individual foodfish by reason of size. 

(e) It is unlawful to use trawl nets for recreational purposes 
unless each net is marked by attaching to the cod end (tailbaa). 
one lloating buoy, any shade of hot pink in color, which shall be 
of solid foam or other solid buoyant material no less than fixe 
inches m diameter and no less than five inches in length. The 
owner shall always be identified on the buoy by using an 
engraved buoy or by attaching engra\'ed metal or plastic tags to 
the buoy. Such identification shall include owner's last name 
and initials and ft' a vessel js used, one of the following: 

( 1 ) Owner's N.C. motor bcial registration number, or 

(2) Owner's U.S. vessel documentation name. 

(f} It is unlawful to use shrimp trawls lor the taking of blue 
crabs m internal waters, except that U shall be permissible to 
take or possess blue crabs incidental to shrimp trawling in 
accordance with the following limitations: 

( I ) For individuals using shrimp trawls authorized by a 
Recreational Ccmimercial Gear License, 50 blue 
crabs, not to exceed 100 blue crabs ff two or more 
Recreational Commercial Gear License holders are on 
board. 



(2) For commercial operations, crabs may be taken 
incidental t(i lawful shrimp trawl operations provided 
that the u eight of the crabs shall not exceed: 

(A) 50 percent of the total weight of the combined 
crab and shrimp catch; or 

(B) 300 pounds, whiche\er is greater. 

£3j The Fisheries Director may, by proclamation, close 
any area to trawling for specific time periods in order 
to secure compliance of this Rule. 

HistoiyNote: Autlwrity G.S. 113-134: 1 13-173: 1 13-182: 

113-221; 143B-289.52: 

Ejf. Eebruan 1. 1991: 

Amended Eff. August 1. 1998: May 1. 1997: March I. 1994: 

February I. 1992: 

Temporan- Amendment Eff. Juh I. 1999. 



.0110 SEINES 

It IS unlawful to use seines greater than 30 feet in length for 
recreational purposes unless the net is marked by attaching to the 
cork line one fioating buoy, any shade of hot pink in color, which 
shall he 12! solid foam or other solid buoyant material no less 
than fise inches in diameter and no less than five inches in 
length. The owner shall always be identified (in the buoy using 



24 



NORTH CAROLINA REGISTER 



July J, 1999 



14:1 



TEMPORAR Y R ULES 



engraved buoys or by attaching engraved metal or plastic tags to 
the buoy. Such identification shall include owner's last name 
and initials and it' a \essel is used, one of the following: 
I yj Owner'sN.C. motor boat registration number, or 

(2) Owner'sU.S. vessel documentation name. 

HistonNote: Authontx G.S. IB- 134: 1 13-173: 1 13-182: 

143B-289.52: 

Temporan- Adoption Eff. Jiih 1. 1999. 

SECTION .0300 - POTS, DREDGES, AND OTHER 
FISHING DEVICES 

.0301 POTS 

(a) It IS unlawful to use pots except during time periods and 
in areas specified herein: 

(1) From November I through April 30, except that all 
pots, except fish pots upstream of U.S. 17 Bridge 
across Chowan River and upstream of a line across 
the mouth of Roanoke, Cashie, Middle and Eastmost 
Rivers to the Highway 258 Bridge, shall be removed 
from internal waters from January 24 through 
February 7. The Fisheries Director may. by 
proclamation, reopen various waters to the use of pots 
after January 28 if it is determined that such waters 
are free of pots. 

(2) From May I through October 3 1 , north and east of the 
Highway 58 Bridge at Emerald Isle: 

, (A) In areas described in I5A NCAC 3R .0107(a); 

(B) To allow for the \ariable spatial distribution of 
Crustacea and finfish, the Fisheries Director 
may, by proclamation, specify time periods for 
or designate the areas described in 1 5A NCAC 
3R .0107(b); or any part thereof, for the use of 
pots. 

(3) From May I through October 31 in the Atlantic 
Ocean and west and south of the Highway 58 Bridge 
at Emerald Isle in areas and during time periods 
designated by the Fisheries Director by proclamation. 

(4) Pots attached to the shore or pier may be used year 
round except during the closed period specified in 
Subparagraph (a) ( 1 ) of this Rule. 

(b) It is unlawful to use pots; 

( 1 ) in any navigation channel m aintain e d and marked by 
State or Federal agencies; or 

(2) in any turning basin maintained and marked by the 
North Carolina Ferry Division. 

(c) It IS unlawful to use pots jn a commercial fishing 
operation unless each pot is marked by attaching a floating buoy 
which shall be of solid foam or other solid buoyant material and 
no less than five inches in diameter and no less than five inches 
in length. Buoys may be of any color except yellow, yellow and 
hot pink. The owner shall always be identified on the attached 

. buoy by using engraved buoys or by engraved metal or plastic 
' tags attached to the buoy. Such identification shall include one 
of the following: 



( 1 ) owner's N.C. motorboat registration number; or 

(2) owner's U.S. vessel documentation name; or 

(3) owner's last name and initials. 

(d) Pots attached to shore or a pier shall be exempt from 
Subparagraphs (a)(2) and (a)(3) ( a)(2 ) . ( a)(3). and (c) of this 
Rule. 

(e) It is unlawful to use shrimp pots with mesh lengths 
smaller than one and one-fourth inches stretch or five-eights 
inch bar. 

(f) It is unlawful to use eel pots with mesh sizes smaller than 
one inch by one-half inch unless such pots contain an escape 
panel that is at least four inches square with a mesh size of 1 " x 
2" located in the outside panel of the upper chamber of 
rectangular pots and in the rear portion of cylindrical pots, 
except that not more than two eel pots per fishing operation with 
a mesh of any size may be used to take eels for bait. 

(g) It is unlawful to use crab pots in coastal waters unless 
each pot contains no less than two unobstructed escape rings that 
are at least 2 5/16 inches inside diameter and located in the 
opposite outside panels of the upper chamber of the pot. Peeler 
pots with a mesh size less than 1-1/2 inches shall be exempt 
from the escape ring requirement. The Fisheries Director may, 
by proclamation, exempt the escape ring requirement in order to 
allow the harvest of peeler crabs or mature female crabs and 
may impose any or all of the following restrictions; 

( 1 ) Specify areas, and 

(2) Specify time. 

(h) It is unlawful to use more than 150 pots per vessel in 
Newport River. 

(i) It is unlawful to remove crab pots from the water or 
remove crabs from crab pots between one hour after sunset and 
one hour before sunrise. 

(j] User Confiicls: 

( 1 ) The Fisheries Director may, with the prior consent of 
the Marine Fisheries Commission, by proclamation 
close anv area to the use of pots in order to resolve 
user confiicl. The Fisheries Director shall hold a 
public meeting in the affected area before issuance of 
such proclamation. 

(2) Any person(s) desiring to close any area to tlie use of 
pots may make such request in writing addressed to 
the Director ol the Di\isu)n ol' Marine Fisheries. 
Such requests shall contain the following information: 

(A) A map of tlie proposed closed area including 
an inset \icinilv map she)wing the location of 
the proposed closed area with detail sufficient 
to permit on-silc identification and location; 

(B) Idcnlification oi the user confiicts causing a 
need for closing the area to the use of pots; 

(C) Recommended method for resohing user 
conllicls; and 

(D) Name and address of Utc person(s) requesting 
the closed area. 

Person(s) making the requests to close an area will be 
required lo prcsenl their request at the public meeting. 
The Fisheries Director shall deny the request or 



(3) 
14J 



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25 



TEMPORARY RULES 



submit a proposed proclamation granting the request 
to the Marine Fisheries Commission lor their 
approval. 
(k) Effective Februarv h 2000. it is unlawful to use pots to 

take crabs unless the line connecting the pot to the buoy is non- 

tloating. 

History- Note: Authority G. S. 113-134: 113-173: 113-182: 

113-221: 143B-289.52: 

Eft: Januaiy 1. 1991: 

Amended Eff. August 1. 1998: May 1. 1997: March J. 1996: 

March 1, 1994: October 1. 1992: September 1, 1991: 

Temporarx Amendment Eff. July I. 1999. 

.0302 RECREATIONAL USE OF POTS 

(a) It is unlawful to use pots for recreational purposes unless 
each pot is marked by attaching one tloating buoy, any shade of 
hot pink in color, which shall be of solid foam or other solid 
buoyant material no [ess than five inches in diameter and no less 
than Hve inches in length. The owner shall always be identified 
on the buoy using engraved buoys or by attaching engraved 
metal or plastic tags to the buoy. Such identificalion shall 
include the owner's last name and initials and if a vessel is used, 
one of the following: 

(1) Owner's N.C. motor boat registration number, or 

(2) Owner's U.S. vessel documentatic^n name. 

(b) It is unlawful for a person to use more than one crab pot 
attached to the shore along privately owned land or to a privately 
owned pier without possessing a valid Recreational Commercial 
Gear License. 

W Pots may be a t tached to shore or a pier any time of year 
wi t h the exception of the closed clean-up period sp e cified in 
15ANCAC3J .0301 (a)(1). 

(tr) Pots attached to shore or a pier are not required to meet 
the buoy and iden t ification requirements specified in 15A 
NCAC 3J .0301(c). but must m e et t he minimum me sh le n gth 
and escape ring lequirements sp e cified in 15A NCAC 3J 
.0301(e). (f) and (g). 

tn The license requirements of GS 113-1 52 a p ply if a vessel 
is used in connection with the use of pots. 

t&l All p rovis i ons of I5A NCAC 3J .0301 apply if pots are 
not attached to sho r e o r a p i e r. 

History Note: Authority GS. 113-134: 1 1 3- 173: 11 3-182: 

143B-289.52: 

Eff. Jcmuary 1. 1991: 

Temporary Amendment Eff. July I. 1999. 

.0305 TROTLINES (MULTIPLE HOOK OR 
MULTIPLE BAIT) 

It is unlawful to use multiple hook or multiple bait trotlines lor 
recreational purposes unless such trotlines are marked by 
attaching to them at each end one tloating buoy, any shade of 
hot pink m color, which shall be ot solid loam or other solid 
buciyant material no less than five inches in diameter and no less 
than five inches in length. The owner shall always he identified 
on the buoy by using an engra\ ed buo\ im" b\ attaching engraved 



metal or plastic tags to the buoy. Such identification shall 
include owner'slast name and initials and if a vessel is used, one 
of the following: 

(1 ) Owner'sN.C. motor boat registration number, or 

(2) Owner's U.S. vessel documentation name. 

History Note: Authority G.S. 113-134: 1 1 3-173: 1 1 3-182; 

143B-289.52: 

Temporan- Adoption Eff. July 1. 1999. 

SUBCHAPTER 3K - OYSTERS. CLAMS, SCALLOPS 
AND MUSSELS 

SECTION .0100 - SHELLFISH, GENERAL 

.0101 PROHIBITED SHELLFISH 
AREAS/ACTIVITIES 

(a) It is unlawful to possess, sell, or take oysters, clams or 
mussels from areas which have been designated as prohibited 
(polluted) by proclamation by the Fisheries Director except as 
provided in 15A NCAC 3K .0103, .0104, and .0401. The 
Fisheries Director shall issue such proclamations upon notice by 
the Division of Environmental Health that duly adopted criteria 
for approved shellfish harvest areas have not been met. The 
Fisheries Director may reopen any such closed area upon 
notification from the Division of Environmental Health that duly 
adopted criteria for approved shellfish harvest areas have been 
met. 

Copies of these proclamations and maps of these areas are 
available upon request at the Division of Marine Fisheries, 3441 
Arendell St., Morehead City, NC 28557; (919) 726-7021. 

(b) The Fisheries Director may, by proclamation, clo.se areas 
to the taking of oysters, clams, scallops and mussels in order to 
protect the shellfish populations for management purposes or for 
public health purposes not specified in Paragraph (a) of this 
Rule. 

(c) It is unlawful to possess or sell oysters, clams, or mussels 
taken from polluted waters outside North Carolina. 

(d) It is unlawful to possess or sell oysters, clams, or mussels 
taken from the waters of North Carolina except as provided in 
G.S. ll.V169.2 (i) 3K .0105 (a)(1) and (a)(2) without a harvest 
tag affixed to each container of oysters, clams or mussels. 
Harvest tags shall be affixed by the harvester and shall meet the 
following criteria: 

( 1 ) Tags shall be identified as harvest tags. They shall be 
durable for at least 90 days, water resistant, and a 
minimum of two and five-eighths inches by five and 
one-fourth inches in size. 

(2) Tags shall be securely fastened to the outside of each 
container in which shellstock is transported. Bulk 
shipments in one container and from the same source 
may have one tag with all required information 
attached. Harvesters who are also certified shellfish 
dealers may use only their dealers tag if it contains the 
required information. The required information shall 
be included on all lots of shellfish subdivided or 



26 



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July I, 1999 



14: 1 



TEMPORARY RULES 



combined into market grades or market quantities by 
a harvester or a certified shellfish dealer. 
(3) Tags shall contain legible information arranged in the 
specific order as follows: 

(A) The harvester's name, address and shellfish 
license or standard commercial fishing license 
oyster, c l am a n d scallop license shellfish 
endorsement number. 

(B) The date of harvest. 

(C) The most precise description of the harvest 
location as is practicable (e.g.. Long Bay. Rose 
Bay) that can be easily located by maps and 
charts. 

(D) Type and quantity of shellfish. 

(E) The following statement will appear in bold, 
capitalized type: "THIS TAG IS REQUIRED 
TO BE ATTACHED UNTIL CONTAINER IS 
EMPTY AND THEREAFTER KEPT ON 
HLE FOR 90 DAYS". 

HistonNote: AuthontyG.S. 113-134; 113-168.5: 113-169.2: 

113-182: 113-221: 143B-289.52: 

Eft: Jamian- 1. 1991: 

AmendedEjf.Jidy 1. 1993: 

Temporan- Amendment Eff. Jiilx 1, 1999. 

.0105 HARVEST OF CRABS AND SHELLFISH 

ta-) It is unlawful fo r individuals claiming exemption f r om 
c r ab license requi re d by G.S. 113-1 53. 1 or the shellfish license 
required by GS 1 13-154. by reason of non-comme rc ial use. to 
take more than: 

Hi One bushel of oysters per pe r son pe r day. not to 

exceed two bus h els pe r vessel per day: 
(-2") One hundred clams per person per day. not to exceed 

t wo hu n d r ed clams pe r vessel per day: 
(31 O n e-half bushel of scallo p s per person per day. not to 
exc e ed one bushel per vessel per day: 
(a)t4l It is unlawful for individuals who harvest blue crabs for 
a recreational purpose to possess more than 50 Fifty blue crabs 
per person per day not to exceed 100 blue crabs per vessel per 
day: day. 

(5) Ten conchs per pe r son per day not to exceed twenty 

conchs per vessel pe r day: 
ffr) One hu n d r ed mussels pe r p er so n per day not to 
exceed two hund r ed mussels pe r vessel per day. 
ttr) — It is unlawful to take c r a b s or shellfish by mechanical 
m e an s wi t h out hav in g fi r st p r ocu re d an ind i vidual crab license 
o r s h ellfish license and a vessel license. — A vessel license, as 
r equired by GS 1 13-152 for the use of other commercial fishing 
equipment as defined in 15A NCAC 31 .0001(b)(1) is not 
required — for the — non-commercial — harvest of shelHIsh — rn 
accordance with limits in Paragraph (a) of this Rule. 

(b) It is unlawful to exceed the daily vessel limits specified in 
G.S. 1 13-169.2 without each person havmg ready at hand a valid 
shellfish license. 

(c) It is unlawful to take oysters or clams on Sundays and 



scallops on Saturdays and Sundays except: 

( 1 ) during open seasons, and 

(2) in accordance with limits outlined in G.S. 113-169.2. 
Paragraph (a) of th i s Ru le wi th o r without license. 

(d) Unlicensed individuals taking crabs pursuant to GS 1 13- 
1 53. 1 (d) or t aki n g sh e llfish pursuant to GS 1 1 3- 1 54 (c 1 ) shall be 
exempt from the limits established in Paragraphs (a) a n d (b) of 
this Rule. 

History Note: Filedasa Temporary Amendment Eff. October 

9, 1995 for a period of 180 days or until the permanent ride 

becomes effective, whichever is sooner: 

Authority G.S. 113-134: 113-169.2: 113-182: 143B-289.52: 

Eff.Januaiyl. 1991: 

Amended Eff. May 1. 1997: March 1. 1996: March 1. 1994: 

February 1. 1992: September 1. 1991: 

Temporan' Amendment Eff. July ]_^ 1999. 

.0106 TAKING OR UNLOADING OYSTERS AND 
CLAMS ON SUNDAY OR AT NIGHT 

(a) It is unlawful to take oysters or clams on Sunday, except 
in accordance with 15A NCAC 3K .0105 .0105(c). or between 
the hours of sunset and sunrise on any day. 

(b) It is unlawful to unload oysters or clams from any vessel 
or remove any vessel containing oysters or clams from the water 
on Sunday or between sunset and sunrise on any day except that 
in New Hanover, Pender and Brunswick Counties, oysters and 
clams may be unloaded until two hours after sunset. Oysters 
and clams taken on Sunday under the provisions of 15A NCAC 
3K .0105 are exempt from the Sunday unloading prohibition. 

HistonNote: Authority G.S. 113-134: 113-182:1438- 

289.52: 

Eff. Januaiy 1, 1991: 

Temporan- Amendment Eff. July l_^ 1999. 

SECTION .0200 - OYSTERS 

.0202 SIZE LIMIT AND CULLING TOLERANCE 

(a) It is unlawful to possess oysters which have accumulated 
dead shell, accumulated oyster cultch material, a shell length less 
than that specified by proclamation, or any combination thereof 
that exceeds a 10 percent tolerance limit by volume. In 
determining whether the tolerance limit is exceeded, the 
Fisheries Director and his agents may grade all. or any portion, 
or any combination of portions of the entire quantity being 
graded, and in cases of violations, may seize and return to public 
bottom or otherwise dispose of the oysters as authorized by law. 

(b) All oysters shall be culled by the catcher where harvested 
and all oysters of less than legal size, accumulated dead shell 
and cultch material, shall be immediately returned to the bottom 
from which taken. 

(c) This Rule shall not apply to oysters imported from 
out-of-state solely for shucking by dealers holding a valid 
license for dealing in oysters and are currently permitted at 
shucking houses which are cui iei itlv certified for shucking and 



14:1 



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July 1, 1999 



27 



TEMPORARY RULES 



packing by the Division of Environmental Healti i Health, 
Shellfish Sanitation Section, and which hold a valid d ealer 
shucker-packer license. 

History Note: Authorit}- G.S. 113-134: 113-182:1438- 

289.52: 

Eff. Januaiy 1, 1991: 

Amended Eff. March 1. 1996: September I. 1991: 

Temporary Amendment Eff. Jiih L^ 1999. 

SECTION .0500 - SCALLOPS 

.0502 TAKING BAY SCALLOPS AT NIGHT AND ON 
WEEKENDS 

It is unlawful to take bay scallops between sunset and sunrise. 
or on Saturdays or Sundays, except as provided in 1 5A NCAC 
3K .0105. .0105 (c). 

History Note: Authont}- G.S. 113-134: 1 13-182: 1 13-221 : 

I43B-289.52: 

Eff. Januan- 1. 1991: 

Temporary Amendment Eff. Juh [^ 1999. 

SUBCHAPTER 3L - SHRIMP, CRABS, AND LOBSTER 

SECTION .0200 - CRABS 

.0201 SIZE LIMIT AND CULLING TOLERANCE 

(a) It is unlawful to possess blue crabs less than five inches 
from tip of spike to tip of spike except mature females, soft, soft 
artd peeler crabs crabs-? and from March 1 through October 3J_, 
male crabs to be used as peeler bait. A tolerance of not more 
than 10 percent by number in any container shall be allowed. 

(b) All crabs less than legal size, except mature female and 
soft crabs shall be immediately returned to the waters from 
which taken. Peeler crabs shall be separated where taken from 
t h e enti r e ca t ch and placed in a separate container, conta iner 
befo r e reaching sh or e o r dock. TTiose peeler crabs not separated 
before reaching sho r e or dock shall be deemed hard crabs and 
are not exempt from the size restrictions specified m Paragraph 
(a) of this Rule. 

HistoiyNote: Authority G.S. 113-134: 1 1 3-182: 1 13-221 : 

I43B-289.52: 

Eff. Januan- 1. 1991: 

Amended Eff. April 1. 1997: July I. 1993: 

Temporary Amendment Eft. July 1 . 1999. 

.0206 PEELER CRABS 

[a] It is unlawful to bait peeler pots, except with male blue 
crabs. Male blue crabs to be used as peeler bait and less than the 
legal size must be kept m a separate contamer. and may not he 
landed or sold. 

(b) It is unlawful to possess male white line peelers from June 
I through September 1. 



(2) 
(3) 
(4) 
(5) 

(6) 



History Note: Authority G.S. 113-134: 1 13-182: 143B- 

289.52: 

Temporary Adoption Eff. July 1. 1999. 

SUBCHAPTER 3M - FINFISH 

SECTION .0200 - STRIPED BASS 

.0202 SEASON, SIZE AND HARVEST LIMIT: 
INTERNAL COASTAL WATERS 

(a) The Fisheries Director may, by proclamation, impose any 
or all the following restrictions on the taking of striped bass in 
mternal coastal waters: 

( I ) Specify season or seasons: 

(A) fo r hook-and-line fishing, for recreational 
purposes: 

(B) for commercial fishing operations e qu ipm e n t 
b et we en from October I through artcf April 30. 

Specify areas. 
Specify quantity. 
Specify means/methods, 

Specify size, but the minimum size specified shall not 
be less than 18 inches total length, and 
Require submission of statistical and biological data. 
Fish that do not meet the minimum size limit specified by 
proclamation shall immediately be returned to the waters from 
which taken regardless of condition. 

(b) The Fisheries Director may, by proclamation, impose any 
or all the following restrictions on the taking of striped bass by 
hook-and-line or for recreational purposes in internal coastal 
waters in order to comply with the management requirements 
incorporated in the North Carolina Estuarine Striped Bass Plan: 

( 1 ) Specify quantity, but shall not exceed possession of 
more than three fish in any one day. and 

(2) Specify size, but the minimum size specified shall not 
be less than 18 inches total length. 

HistoiyNote: Authority G.S. 113-134: 1 13-182: 1 13-221 : 

1438-289.52: 

Eff. Januaiy 1 . 1991: 

Amended Eff. March 1. 1996: November I. 1991; 

Temporaiy Amendment Eff. September 1. 1996: 

Amended Eff. April T 1997: 

Temporan Amendment Eff. July 1. 1999. 

SECTION .0300 - SPANISH AND KING MACKEREL 

.0301 SPANISH AND KING MACKEREL 

(a) The Fisheries Director ma\ . b\ proclamation, impose any 
or aU of the following restrictions on the taking of Spanish or 
king mackerel: 

( 1 ) Specify areas. 

(2) Specify seasons. 

(3) Specify commercial quantity. 

(4) Specify means/methods. 

(5) Specify size for fish taken by commercial fishing 



28 



NORTH CAROLINA REGISTER 



Juh L 1999 



14:1 



TEMPORARY RULES 



12) 
13) 
14} 



operations. 

(b) King mackerel and Spanish macicerel taicen for 
recreational purposes or by hoot; and hne: 

( 1 ) It is unlawful to possess i<ing mackerel less than 20 
inches fork lentith. 

It is unlawful to possess more than three king 
mackerel p er person per day. 

It is unlawful to possess Spanish mackerel less than 
12 inches fork length. 

It is unlawful to possess more than 10 Spanish 
mackerel per person per day. 

(c) King mackerel and Spanish mackerel taken by 
commercial fishing operations, exclusive of hook and line: 

( 1 ) It is unlawful to possess king mackerel less than 20 
inches Ibrk length. 

(2) It is unlawful to possess Spanish mackerel less than 
12 inches fork length. 

ts) King macke r el : 
Hi It is unlawful t o possess king mackerel less t han 20 

inches fo r k lengt h . 
(5) It is unlawful to possess more than three king 
mack ere l p er p er son per day taken by hook-and-line. 
ftr) Spanish macke re l : 
(4i It is unlaw l ul to p ossess Spanish mackerel less than 

12 inch e s fo r k length. 

f^ It is unlawful to poss es s more than — 10 Spanish 

macker e l pe r p er son pe r day ta ken by hook-and-line. 

tcijd) Persons in possession of a yalid National Marine 

Fisheries Service Coastal Migratory Pelagic (Mackerel) Permit 

to fish on the commercial mackerel quotas are exempt from the 

mackerel creel limits restrictions established in Paragraph 

Paragraphs (a) and (b) of this Rule. 

(-ch(e) Charter vessels wi th Persons jn possession of a valid 
National Marine Fisheries Service Federal Coastal Migratory 
Pelagic (Mackerel) Permit must comply with the mackerel creel 
limits restrictions established in Paragraph Paragraphs (a) and 
(b) of this Rule when fishing with more than three persons 
(including the captain and mate) on board. 



tn it-i 



is uniawtu l to possess a h oaru o r l and trom a vessel, or 
combina t ion of vessels that fo r m a singl e operation, more than 
3.500 pounds of Spanish o r ki n g mack er el, i n th e agg r egate, i n 
any one day. — Tl i e F i sheri e s D i r e cto r may. by proclamation, 
impose any or all of t he following r estrictions on the taking of 
Spanish or king mackerel: 
Hi Spec i fy a r eas. 

Specify seasons. 

Specify commercial quantity. 

Specify means/methods. 

Specify s i 7e for f i sh t ak e n by commercial fishing 

equ i pment . 
(f) It is unlawful to possess aboard or land from a vessel, or 
combination of vessels thai tbrm a single t)pcration. m(ire than 
3.500 pounds of Spanish or king mackerel, in the aggregate, [n 
any one day. 

History Note: Authovitx G.S. II.^-LU: 11 5-IH2: 11 3-221 : 






143B-289.52: 

Eff. Jcuman I. 1991: 

Amended Eff. March I. 1996; 

Temporan- Amendment Eff. July ]_^ 1999. 



SECTION .0500 - OTHER FINFISH 

.0501 RED DRUM 

(a) The Fisheries Director, may by proclamation, impose any 
or all of the following restrictions on the taking of red drum: 

( 1 ) Specify areas. 

(2) Specify seasons. 

(3) Specify quantity for tlsh taken by commercial gear. 

(4) Specify means/methods. 

(5) Specify size for fish taken by commercial gear. 

(tr) It is unlawful to po s s e ss r ed drum greater than 27 i n c hes 
total le n gth. 

tci Ibi It is unlawful to remove red drum from any type of net 
with the aid of any boat hook. gaff, spear, gig, or similar device. 

ftH IcJ It is unlawful to possess red drum less than 1 8 inches 
total length, length or greater than 27 inches total length. 

tel tdj It is unlawful to possess more than one red drum per 
person per day taken-by hook-and-line or for recreational 
purposes, of which no mor e tha n one may he la r ge r tha n 27 
i nches total length. 

[ej tf) It is unlawful to possess more than 100 pounds of red 
drum per vessel per day taken in a commercial fishing operation. 
by commercial fishing equipment. 

(f) tg) The annual commercial quota (January through 
December) for red drum is 250.000 pounds. If the quota is 
projected to be taken, the Fisheries Director shall, by 
proclamation, prohibit possession of red drum taken [n a by 
commercial fishing operation, equipment. 

History Note: Authority G.S. 113-134: 1 1 3-182: 1 13-221 : 

I43B-289.52: 

Eff. Januai-\- I. 1991: 

Amended Eff. March 1. 1996: October 1. 1992: September 1. 

1991: 

Temporan- Amendment Eff. Jiih L 1999: October 22. 1998. 

.0503 FLOUNDER 

(a) It is unlawful to possess tlounder: 

( 1 ) Less than 13 inches total length taken from internal 
waters: 

(2) Less than 14 inches total length taken from the 
Atlantic Ocean in a xvrth commercial fishing 
operation; equipment o r by hook-a n d-lme or gig if 
claimi n g the exemption spe cifi ed in Paragraph (f) of 
this Rule: 

(3) Less than 15 inches total length taken from the 
Atlantic Ocean for recreational purposes, by hook- 
and-line o r g i g. 

(b) From October I through April 30. it shall be unlawful to 
use a trawl in the Atlantic Ocean within three miles of the ocean 
beach from the North CarolinayVirginia state line (35E 33N N) 



14:1 



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July 1, 1999 



29 



TEMPORARY RULES 



to Cape Lookout (34E 36N N) unless each trawl has a mesh 
length of 5 2 inches or larger diamond mesh (stretched) or 6 
inches or larger square mesh (stretched) applied throughout the 
body, extension(s) and the cod end (tailbag) of the net except as 
provided in Paragraphs (h) and (i) of this Rule. 

(c) License to Land Flounder from the Atlantic Ocean: 

( 1 ) It is unlawful to land more than 100 pounds per trip of 
flounder taken from the Atlantic Ocean unless the 
owner of the vessel or in the case of Land or Sell 
Licenses, the responsible party. Teasel has been issued 
a License to Land Flounder from the Atlantic Ocean. 
Ocean and the vessel in use is the vessel specified on 
the License to Land Flounder from the Atlantic 
Ocean. 

(2) It is unlawful for a fish dealer to purchase or offload 
more than 100 pounds of flounder taken from the 
Atlantic Ocean by a vessel whose owner, or in the 
case of Land or Sell Licenses, the responsible party. 
that has not first procured a valid North Carohna 
License to Land Flounder from the Atlantic Ocean 
and the vessel in use is the vessel specified on the 
License to Land Flounder from the Atlantic Ocean. 
Ocean. 

(3) It is unlawful for any person to land llounder from the 
Atlantic Ocean under a License to Land Flounder 
from the Atlantic Ocean unless that person is the 
holder of the license or Uie master desiiinatcd on the 
license. 

t3l To qualify fo r a No r th C ar oli n a Lice n se to La n d 

Flounder from the Atlantic Ocean, a vessel shall have: 

tA) bee n O. S. 1 13-152 o r 1 13-153 during any two 

of the 1992-93. 1993-94. or 1994-95 license 

years, and 

(©-) la n ded in No rth Ca r olina a t l e ast 1 . pounds 

of tlou n dc r each year from the Atlantic Ocean 

durmg any two of the 1992-93. 1993-94. or 

1 994-95 — license yeai ' s fo r w hi ch t h e vessel 

was lice n sed to land in Nor t h Caro l ina. 

t4l At least 10 days prior to iss u an c e, a p plicants for the 

license shall complete an applicatio n form provid e d 

b y th e D i visio n of Ma r i n e Fisheries and submit it to 

t h e No r th Carolina Division of Marine Fishe i' ies. Post 

Office Box 769. 3441 Arend e l l St r eet. Mo r ehead 

City. — Nnrth — Ca r ol i na — 28557. The — following 

infor m ation is re qu ir ed : 

tAl Valid docu m c n lat i nn pape r s o r cu rre nt moto r 

boat registratio n or copy the r eof: 
tfil P r oof of r equurd — licenses — and — fiounder 
l a n dmgs data for that vessel during the years 
t h e vessel was licensed. 
Lice n ses shall be issued to qualify in g vessels at no fee 
and o n ly from the Morehead C it y Office of the 
Divisio n of Mari n e F i s h e r ies. 
f5l Licenses may only be tra n sfe rr ed : 

tA) with the transfer of the owne r sh i p of a v e ss e l 
holdi n g a License to Land Flou n de r f r om the 
Allanlic Ocean to the new ow n e r o t thai \esse l : 



(^ 



L4}fh 



m 



or , 
f&) by the owner of a vess e l to another vessel 
under the same ownership. The vessel owner 
is only eligible fo r the same numl i er of 
Licenses to Land Flound e r from the Atlantic 
O c ea n fo r which his boats qualify; 
Any transfe r of lic e nse under this Paragraph must be 
fa cil it ated thr ough t he Division of Marine Fislierie s 
Mo reh ead C i ty Office only. 

It is unlawful for any individual to land flounder from 
the Atlantic Ocean without having ready at hand for 
inspection a valid License to Land Flounder from the 
Atlantic Ocean, except as specified in Subparagraph 
(c)(1) of this Rule. 
Suspension or Revocation: 

tAl A License to Land Flou n der from the Atlantic 
Ocean i ssu e d u n de r this Rule shall be subject 
to suspe n s i o n o r revocation pursuant to the 
provisions of 15A NCAC 3P, except that this 
license shall he subject to revocat i on pursuant 
to the provisions of G.S. 1 13-106 when the 
licensee is convicted of a cr i minal off e nse 
within the ju r isdictio n ol the Departme n t u n de r 
the p r ovisionsof Su b chap t e r IV of G.S. 1 13. or 
of — the — rofes — of — the — Marine — Fisheries 
Comm i ssion adopted under the authority of 
that Subchapte r . 

Th e D i vis i o n m ay com m ence proceedings 

under 15A NCAC 3P. for suspension or 

revocation of a Lice n se to Land Flou n de r from 

the Atla nt ic Ocean if it finds : 

tr) the license was obtained by providing 

any — false — information — or — willfull y 

o m itti n g re qui r ed information when the 

information is material to the securing 

of th e l i ce n se; o r 

the lice n se was falsifi e d, f r audul e ntly 
altered, or counterfeited; or 
the lic e nsee practices any — fraud or 
decept i o n — designed — to — evad e — tfie 
provisions of th i s Rule o r r easonable 
administrative directives made under the 
aut h o ri ty of this Rule or G.S. — f+f^ 



tm 



trr) 



(rfr) 



182(b)(3). 

(d) It is unlawful to transfer flounder taken from the Atlantic 
Ocean from one vessel to another. 

(e) It is unlawful to possess more than eight fiounder per 
person per day taken for recreational purposes by hook-and-line 
or g i g from the Atlantic Ocean, 

tf) Persons fishing from a vesse l with a valid vess el 
e n doise m ent to sell or persons fishing hut not from a v essel w h o 
h old a valid n o n v e sse l e n dorsement to sell are exempt fr om th e 
possessio n li mi t i n Pa r ag r aphs (a) (3) and (e) of this Rule. 

(f)ttr) Tailbag liners of any mesh size, the multiple use of two 
or more cod ends, or other netting material that in any way could 
restrict the legal size mesh required by this Rul e , shall not be 
used or possessed on the deck of a \ essel in the Atlantic Ocean 



30 



NORTH CAROLINA REGISTER 



July I, 1999 



14:1 



TEMPORARY RULES 



from October 1 through April 30 from the North 
CarolinaA'irginia state Mne (36° 33' N) to Cape Lookout (34" 36' 
N). 
( (g)fh) Trawls with a cod end mesh size smaller than 

described in Paragraph (b) of this Rule may be used or 
possessed on the deck of a vessel provided not more than 100 
pounds of flounder per trip from May 1 through October 31 or 
more than 200 pounds from November 1 through April 30 is 
possessed aboard or landed from that vessel. 

(h)tTl Flynets are exempt from the flounder trawl mesh 
requirements if they meet the following definition; 

( 1 ) The net has large mesh in the wings that measure 8 
inches to 64 inches; 

(2) The first body section (belly) of the net has 35 or 
more meshes that are at least 8 inches: and 

(3) The mesh decreases in size throughout the body of the 
net to as small as 2 inches or smaller towards the 
terminus of the net. 

lUtf* Commercial Season. 

( 1 ) The North Carolina season for landing ocean-caught 

fiounder shall open January 1 each year. If 70 percent 

of the quota allocated to North Carolina in accordance 

with the joint Mid-Atlantic Fishery Management 

Council/Atlantic States Marine Fisheries Commission 

Fishery Management Plan for Summer Flounder is 

projected to be taken, the Fisheries Director shall, by 

proclamation, close North Carolina ports to landing of 

flounder taken from the ocean. 

I (2) The season for landing flounder taken in the Atlantic 

Ocean shall reopen November 1 if any of the quota 

allocated to North Carolina in accordance with the 

joint Mid-Atlantic Fishery Management 

Council/Atlantic States Marine Fisheries Commission 

Fishery Management Plan for Summer Flounder 

remains. If after reopening. 100 percent of the quota 

allocated to North Carolina in accordance with the 

joint Mid-Atlantic Fishery Management 

Council/Atlantic States Marine Fisheries Commission 

Fishery Management Plan for Suinmer Flounder is 

projected to be taken prior to the end of the calendar 

year, the Fisheries Director shall, by proclamation. 

close North Carolina ports to landing of flounder 

taken from the ocean. 

(3) During any closed season prior to November 1. 

vessels may land up to 100 pounds of flounder per 

trip taken from the Atlantic Ocean. 

(j}tk) The Fisheries Director may, by proclamation, establish 

u-ip limits for the taking of flounder from the Atlantic Ocean to 

assure that the individual state quota allocated to North Carolina 

in the joint Mid-Atlantic Fishery Management Council/Atlantic 

States Marine Fisheries Commission Fishery Management Plan 

for Summer Flounder is not exceeded. 

History Note: Filed as a Temporary Atueiidiuent Eff. 
' November 1, 1995 for a period of 180 days or until the 
permanent rule becomes effective, whichever is sooner; 



Authority G.S. 113-134; 113-169.5; 113-182; 113-221; 143B- 

289.52; 

Eff. January 1, 1991; 

Amended Eff. March I. 1996; February 1. 1992; 

Temporary Amendment Eff. December 23, 1996; 

Amended Eff. April 1. 1997; 

Temporary Amendment Eff. June 1.1998; August 18, 1997; 

Amended Eff. Aphl 1 , 1999; 

Temporan Amendment Eft. Julx 1, 1999. 

.0504 TROUT 

(a) Spotted seatrout (speckled trout). 

( 1 ) It is unlawful to possess spotted seatrout less than 1 2 
inches total length. 

(2) It is unlawful to possess more than 10 spotted seatrout 
per person per day taken by hook-and-line. hook-and- 
line or for recreational purposes. 

(b) Weakfish (gray trout). 

( 1 ) The Fisheries Director may, by proclamation, impose 
any or all of the following restrictions on the taking of 
weakfish by commercial gea r , fishing operations. 

(A) Specify areas. 

(B) Specify seasons. 

(C) Specify quantity. 

(D) Specify means/methods. 

(E) Specify size, but the minimum size shall not be 
greater than 12 inches total length. 

(2 ) The Fisheries Director may, by proclamation, in order 
to comply with or utilize conservation equivalency to 
comply with the Atlantic States Marine Fisheries 
Commission Weakfish Management Plan, impose any 
or all of the following restrictions on the taking of 
weaktlsh by h ook-and-l ine . hook-and-line or for 
recreational purposes: 

(A) Specify quantity. 

(B) Specify size. 

History Note; Authority G.S. 113-134; 113-182; 113-221; 

I43B-289.52; 

Eff. Januaiy 1, 1991; 

Amended Eff. March 1. 1996; March 1. 1995; February 1. 1992; 

Temporary Amendment Eff. September 9, 1996; 

Temporan Amendment Eff. October 1. 1996; 

Amended Eff. April I, 1997; 

Temporan Amendment Eft. July l^ 1999. 

.0507 BILLFISH 

(a) Blue ma r l i n: Marlin: Taken for recreational purposes or 
by hook and line: 

( 1 ) It is unlawful to possess blue marlin less than % 99 
inches in length from the lower jaw to the fork in the 
tail. 

(2) It is unlawful to possess white marlin less than 66 
inches in length l'rt)m the lower jaw to the fork in the 
tail. 

(3) It is unlawful to possess more than one blue or white 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



31 



TEMPORARY RULES 



marl in in the aggregate per vessel p er trip. 
(4) It is unlawful to sell or offer for sale blue or white 

marlin . 
(^ I t is unlawful to possess mo r e than one blue marlin 
per person per day. 
fb) W h it e ma r l i n: 
Hi I t i s u n lawful t o possess whit e marlin l e ss t h an 6 6 
inc he s in length froin the lowe r jaw t o t h e fo r k in th e 
tail. 
(21 It is u n lawful to possess more than one white m arl i n 
per pe r so n p er day. 
(c1 Sa ilfish: 
(b) Sailfish: Taken for recreational purposes or by hook and 



line: 



(1) It is unlawful to possess sailfish less than 63 5? 
inches in length from the lower jaw to the fork in the 
tail. 

(2) It is unlawful to possess more than one sailfish per 
person per day. 

(3) It is unlawful to sell or offer for sale sailfish. 
tu; coDia: 

Hi It is unlawful to possess cobia less than 33 inches fork 

le n gth taken by hook-a n d-li n e. 
t^ It is un l awful to possess more than t wo c o bi a pe r 
person per day taken by hook-and-line. 
te) Dolphin: 
Hi It is unlawful to possess mo r e than 10 do l phin pe r 

perso n per day. 
t2i Exempt i ons: 

(tV) Charte r vessels w i th a valid Na t io n al Marin e 
Fisheries — Service — Charter Vessel — Coastal 
Migratory Pelagic P e rmit and l i c en sed b y the 
UtS: — Coast — Guard — to — carry — srx — or — lerrs 
passengers for hire, may possess a maximum 
of 6 do l phin pe r day r e ga r d le ss of the number 



tBi Vessels with a valid commercia l National 
Mar i ne — F'i she r ics — Se r v i ce — Fede r al — Coastal 
Mig r a t o r y — Pelagic — Permit — including 
charterboats when fishing with t h re e or less 
persons (includ in g c a ptai n a n d mate I o n boa r d 
ar e exem p t from the creel limits set out in 
Su bp arag r aph (e)( 1 ) of this Rule. 

History Note: Authority G.S. IL^-134: 113-182:1438- 

289.52: 

Eff. Januaiy 1. 1991: 

Amended Eff. March I. 1996: March I. 1994: Februurx 1. 1992: 

September 1. 1991: 

Temporary Amendment Eff. June 7, 1998: Septemljcr I, 1996: 

Amended Eff. Julx 1. 1998: 

Temporary Amendnwnt Eff. Juh 1, 1999. 

.0511 BLUEFISH 

t3l In order to comply with or utilize conservation 
equi\alencv to complv with the management requirements 
incorporated in the Fishery Management Plan for Bluefish 



developed cooperatively by the Mid-Atlantic Fishery 
Management Council and the Atlantic States Marine Fisheries 
Commission, the Fisheries Director may, by proclamation, take 
any or all of the following actions for bluefish: in the blu e fi sh 
commerc i a l fishe r y: 

( 1 ) Taken by a commercial fishing operation: 
Hi(a) Specify size; 

(^(b) Specify seasons; 
(5l(c) Specify areas; 
t4l(d) Specify quantity; 
t5i(e) Specify means/methods; and 
tfi(f) Require submission of statistical and biological 
data. 

(2) Taken for recreational purposes: 

(+i In order to comply — with o r utilize conse r vation 
e quivalency to comply wit h th e management r e quirements 
incorporated in the Fis h e r y Ma n ageme n t Plan for Bluefish 
d e v el o p ed — cooperat i vely — by — the — Mid-Atlantic — Fisher i es 
Management Council and the Atlantic States Ma ri ne Fish er i e s 



CtT 



mmission. the Fishe ri es Di re cto r may. by proclamation, take 
an y o r all of th e fo l low in g actions in t he b l uefish hook-and-line 
fishery: 

Hi(a) Specify size; 

f2l(b) Specify quantity. 

History Note: Authority G.S. 113-134: 1 1 3-182: 1 1 3-221 : 

143B-289.52: 

Eff: March I. 1994: 

Amended Eff: March I. 1996: 

Temporary Amendment Eff. September 9. 1996: 

Amended Eff. April I. 1997: 

Temporary Amendment Eff. July i^ 1999. 

.0513 RIVER HERRING AND SHAD 

(a) Until the adoption of a fishery management plan for river 
herring (Blueback Herring. Alewife) or shad (American Shad, 
Hickory Shad) by the North Carolina Marine Fisheries 
Commission, it is unlawful to take blueback herring, alewife. 
American shad and hickory shad by any method from April 15 
thrt)ugh January 1 . 

(b) Upon adoption of and in order to comply with the 
management requirements incorporated in the Fishery 
Management Plan(s) for River Herring (Blueback Herring. 
Alewife) or Shad (American Shad. Hickory Shad) developed by 
the North Carolina Marine Fisheries Commission, the Fisheries 
Director may. by proclamation, take any or all of the following 
actions in the blueback herring, alewife. American shad and 
hickory shad fisheries: 

( 1 ) Specify size; 

(2) Specify season; 

(3) Specify area; 

(4) Specify quantity; 

(5) Specify means/methods; and 

(6) Require submission of statistical and biological data. 

(c) It is unlawful to possess more than 10 American shad or 
hickory shad, in the aggregate, per person per day taken by 
hook-a n d-line. hook-and-line »\ for recreational purposes. 



32 



NORTH CAROLINA REGISTER 



Julv L 1999 



14:1 



TEMPORARY RULES 



History Note: Authority- G.S. 113-134: 1 13-182: 1 13-221 : 

143B-289.52: 

Eff. March 1. 1995; 

Amended Eff. August 1. 1998: 

Temporan Amendment Eff. July 1. 1999. 

.0515 DOLPfflN 

It is unlawful to possess more than 10 dolphin p er person p er 
day taken by hook and line for recreational purposes except: 

( 1 ) Charter vessels with a valid National Marine Fisheries 
Service Charter Vessel Coastal Migratory Pelagic 
Permit and licensed by the U.S. Coast Guard to carry 
six or less passengers for hire, may possess a 
maximum of 60 dolphin per day regardless of the 
number of people on board. 

(2) Vessels with a valid commercial National Marine 
Fisheries Service Federal Coastal Migratory Pelagic 
Permit including charterboats when fishing with three 
or less persons (including captain and mate i on board. 

History Note: Authority G.S. 113-134: 113-182:1438- 

289.52: 

Temporan Adoption Eff. Julx 1, 1999. 

.0516 COBIA 

(aj It is unlawful to possess cobia less than 33 inches fork 
length. 

(b) It is unlawful to possess more than two cobia per person 
per day . 

History Note: Authority G. S. 1 1 3-134: 1 1 3-182: 143B- 

289.52: 

Temporan- Adoption Eff. Jul\ 1_^ 1999. 

SUBCHAPTER 30 - LICENSES. LEASES, AND 
FRANCHISES 

SECTION .0100 - LICENSES 

.0101 PROCEDURE AND REQUIREMENTS TO 
OBTAIN LICENSES. ENDORSEMENTS AND 
COMMERCIAL FISHING VESSEL 
REGISTRATIONS 

(a) To obtain any Marine Fisheries licenses, endorsements, 
commercial fishing vessel registrations except Recreational 
Fishing Tournament Licenses to Sell Fish and Land or Sell 
Licenses, the following information is required for a proper 
application by the licensee, a responsible party or person holding 
a power of attorney: 

( 1 ) Full name, physical address, mailing address, date of 
birth, and signature of the licensee on the application. 
If the licensee is not appearing before a license agent 
or a representative of the Division, the licensee's 
signature on the application must be notarized; 

(2) Picture identification of licensee or responsible party; 
acceptable forms of picture identification are drivers 



license, state identification card, military 
identification card, resident alien card (green card) or 
passport or if purchased by mail, a copy thereof; 

(3) Certification that the applicant does not have four or 
more marine or estuarine resource violations during 
the previous three years; 

(4) Valid documentation papers or current motor boat 
registration or copy thereof when purchasing a 
commercial fishing vessel registration. If an 
application for transfer of documentation is pending, 
a copy of the pending application and a notarized bill 
of sale may be submitted; 

(5) Current articles of incorporation and a current list of 
corporate officers when purchasing a license or 
commercial fishing vessel registration in a corporate 
name; 

(6) If a partnership is established by a written partnership 
agreement, a current copy of such agreement shall be 
provided when purchasing a license, endorsement or 
commercial fishing vessel registration in a partnership 
name; 

(7) For nonresidents, certification of the state of 
residency; 

(8) In addition to the information required in G.S. 1 13- 
169.4. linear length of pier when purchasing an Ocean 
Fishing Pier License; 

(9) In addition to the information required in G.S. 1 13- 
171.1. current aircraft registration and list of 
operator(s) when purchasing a Spotter Plane License; 

(10) In addition, for fish dealers licenses, the physical 

address of the established location where business is 

conducted and, if different, the address where records 

are kept. 

(b) To obtain a License to Land Flounder from the Atlantic 

Ocean: 

(1) To qualify for a License to Land Flounder from the 
Atlantic Ocean, the applicant shall: 

(A) have landed in North Carolina at least 1.000 
pounds of flounder from a single vessel each 
year from the Atlantic Ocean during any two of 
the 1992-93. 1993-94. 1994-95 license years 
for which the person had a vessel that was 
licensed to land in North Carolina; and 

(B) have been licensed under G.S. 1 13-152 or 1 13- 
153 during any two of the 1992-93. 1993-94, 
or 1994-95 license years; and 

(C) hold a valid Standard or Retired Commercial 
Fishing License or valid Land or Sell License. 

(2) It is lawful for a person to hold Licenses to Land 
Flounder from the Atlantic Ocean equal to the number 
of vessels that he owns that individually met the 
eligibility requirements of Subparagraphs (b) (1 ) (A) 
and (b) (1) (B) of this Rule. 

(3) The License to Land Flounder from the Atlantic 
Ocean is only valid when used on the vesse l specilled 
at the time of license issuance. 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



33 



TEMPORARY RULES 



14] 



iii 



16] 



At the time of issuance, the apphcant for the License 
to Land Flounder from the Atlantic Ocean shall 
specify the name of the master of the vessel for each 
License to Land Flounder from the Atlantic Ocean 
issued. 

Applicants for a License to Land Flounder from the 
Atlantic Ocean shall complete an application form 
provided by the Division of Marine Fisheries and 
submit ft to the Morehead City Office ol Utc Division 
of Marine Fisheries for processinii. 
It IS unlawful for the holder of the License to Land 
Flounder from the Atlantic Ocean to fail to notify the 
Morehead Office of the Division of Marine Fisheries 
within five days of change as to the master identified 
on the license. 
(7) Licenses to Land Flounder from the Atlantic Ocean 
are issued for the current license year and expire on 
June 30. 
(c) To obtain a Recreational Fishing Tournament License to 

Sell Fish, the following information is required for a proper 

application: 

( I ) Full name, physical address, mailing address, date of 
birth, signature of the tournament organizer, name of 
tournament, and dates of tournament on the license 
application. If the licen.see is not appearing before a 
reprcscnlati\e (>f theDi\ision.the licensee's signature 
must be notarized on the application. 
Picture identification of tournament organizer; 



12] 



13] 



acceptable fornis of picture identification are dri\er's 
license, state identification card, military 
identificatic)n card, or passport, or \J_ purchased by 
mail, a copy thereof. 

The tournament organizer must apply with the 
Division of Marine Fisheries at least 30 days prior to 
the starting date of the tournament. 



information is required for a prt)per application: 

( 1 ) Full name, physical address, mailing address, date oi' 
birth, and signature oi the responsible party or master 
for the vessel on the license application. If the 
licensee is not appearing before a rcprescnlati\'e of the 
Division, the licensee's signature on the application 
must be notarized on the application; 

(2) Pictured identification of responsible party oi master; 
acceptable torms of picture identification are driver's 
license, slate identification card, military 
identification card, or passport or if applying by mail. 
a copy thereof; 

(3) "Valid documentation papers or current mcHor boat 
registration or copy thereof when purchasing a 
commercial fishing vessel registraticin. If an 
application for transfer of documentation ]s pending. 
a copy of the pending application and a notarized bill 
of sale may be submitted. 

Fees will be based on the vessel'shomeport as it appears on the 
U.S. Coast Guard documentation papers or the State in which 
the vessel is registered. 



(e) Proof of residency in North Carolina for: 
11] Standard Commercial Fishing License or Retired 
Standard Commercial Fishing License shall be: 

(A) a notarized certification from the applicant that 
the applicant is a resident of the State of North 
Carolina as defined by G.S. 1 13-130(4) and; 

(B) a notarized certification from the applicant that 
a North Carolina State Income Tax Return was 
filed for the previous calendar or tax year as a 
North Carolina resident; or 

(C) a notarized certification that the applicant was 
not required to fije a North Carolina State 
Income Tax Return for the previous calendar 
or tax year; or 

ID] military identification, military dependent 
identification and permanent change of station 
orders or assignment orders substantiating 
individual's active duty assignment at a 
military facility in North Carolina. 

All other types of licenses: 

(A) North Carolina vi>ter registration card; or 
Valid North Carolina Driver'sLicense; or 



12] 



IB] 
IC] 

(D) 



Valid North Carolina Certificate of Domicile 



or 
Valid 



North Carolina Identification Card 

issued bv the North Carolina Division of Motor 

Vehicles; or 

(E) Military identification, military dependent 

identification and pennanent change of station 

orders or assignment orders substantiating 

individual's active duty assignment at a 

military facility in North Carolina. 

(f) Applications submitted v.itht)Ut ccimplete and required 

information will be deemed incomplete and will not be 

considered further until resubmitted with all required 



Id] To obtain a Land or Sell License, the Ibl lowing information. 



(g) License hc^lders are required to notify the Division ol' 
Marine Fisheries within 30 days of a change of address. 

(h) Licenses are available at Offices of the Division or by 
mail from the Morehead City Office, unless otherwise specified. 
In addition. Recreational Commercial Gear Licenses are 
available at Wildlife Serv ice Agents who have been designated 
as agents ol the Department. 



age n ts in the c ou nti es which 



ttr) I h e to ta l number ol license age n ts in t n e c ou nti es wmc r 
c o n tain o r bo r de r o n coastal fishing waters shall not exceed 43. 
The lice n se agents autho ri zed fo r e ach county as of Octo b er I. 
I9!^3. shall be allowed to re n ew thei r age n cy authorization 
subject to the terms of this Rule. The desired numbe r of licens e 
age n ts fo r coastal fi shin g waters cou n ties is th r ee agents for 
Ca r teret. Da r e. New Ha n ove r a n d Onslow c ounties; two age n ts 
for Beaufo r t. B r u n swick a n d C r av en counties; a n d one agent fo r 
the remain i ng counties : 

i^f) In the se l ection of license agents, the Secreta r y shall 
conside r the following requirements : 

f+1 Wi l lingness — tn — attend — a nnual — t r a in ing — seminars 

conducted at the Division field offices; 
tSl D em onst r ated abil i ty, either th r ough paslt i e i foi m .i ii LC 



34 



NORTH CAROLINA REGISTER 



July 1, 1999 



14:1 



TEMPORARY RULES 



o r through pr e sent capa b iliti e s, t o maintain an 
accurate accounting of licenses and funds receiv e d 
from the sale of licenses; and 
(5^ Tha t no two license agen t s be locat e d within a 1 mile 
radius. 
fc) License agents appointed after October 1, 1983. shall 
rec e ive a tempora r y appointment for a six month period. The 
Secretary shall re vi e w the appointment and determine whether 
the appoi n tment should continue on the same terms applicable 
to other license agents. 

ftH It is unlawful for a Divisio n a pp oin te d l i c e nse ag en t or 
any otiier perso n who is ac ti ng in suc h age n t's behalf to: 

Hi withhold o r misappropriate funds from the sale of 

licenses; 
til falsify records of licenses sold; 
(61 willfully an d k n owingly assist or allow a person to 

obtain a licen se for which he is ineligible: 
(4) willfu l ly issue a backdated license; 
tfr) w i llfu l l y on records or licenses to include false 
informa t ion or omit mateiial iiifoii i ialioii as to. 
(Al a person's entitlement to a particular license; or 
tfil the applicability or term of a particula r l i cense; 
tb) r efus e to return all consigned licenses, or to remit the 
net value of consigned licenses sold o r unaccou n ted 
for upon demand from an authorized employee of the 
D i visio n . 
tei The Sec r etary may temporarily suspe n d, revoke, o r r efuse 
to r enew a pe r so n 's appointment as a lice n se agenl if he or his 
e mp loyees fail in a t i m e ly m anne r to submit r equ ir ed repo r ts. 
r emit m onies due the Division, or othe r wise comp l y with 
qualificat i o n s and standa r ds set by the Division of Marine 
Fishe r ies. A n y a p peal of the Sec r etary's decision to temporarily 
suspend, r evoke o r refuse to r enew a n appoi n t m ent of a lice n se 
age n t s h all be c onducted pursuant to the process set out in 1 5A 



Histoiy Note: Authority G.S. 113-134:113-168: 113-168.1: 

113-168.2: 113-1683: 113-168.4: 113-168.5: 113-168.6: 113- 

169: 113-169.2: 113-169.3: 113-169.4: 113-169.5: J 13-171. 1: 

143B-289.52: 

Ejf. Jamiaiy 1 . 1991: 

Amended Eff. July 1, 1997: March 1. 1994: 

Temporan- Amendment Eff. Jul\ 1, 1999. 

.0102 RECREATIONAL FISHING TOURNAMENT 
LICENSE TO SELL FISH 

(a} It is unlawful for anyone other than the holder of the 
Recreational Fishing Tournament License to Sell Fish to sell fish 
taken during a recrealional fishing tournament. 

(b) Fish to be sold under the Recreational Fishing 
Tournament License to Sell Fish must be sold only to licensed 
fish dealers. 

(c) It is unlawful for a licensed recreational fishing 
tournament organizer to fail to accurately and legibly complete 
and file within 30 days after the last day of the tournament a 
North Carolina Recreational Fishing Tournament Disposition of 



Proceeds from the Sale of Fish Form provided by the Division. 
ttr) To o b tai n a v e s.se l lice n se, an endorsement to sell fish or 
a s h ellfish and c r ab lice n se, the following information is 
r equ ir ed : 

("H Full name, address, date of birth, and signatuie on 

license appl i cation; 
t^ Pictured identification of purchaser when purchasing 

a shellfish and c r ab license; 
t3l Valid documentation pape r s or cur r en t motor boat 
r eg i st r a ti on o r co p y ther eof wh en p ur chasing a vessel 
lic en se. A hull i den t ification numbe r is required for 
new boats which have not been issued a m otor boat 
r egistration number; 
(4) Ove r all length of vessel. — Any vessel with le n gth 
involv i ng in c h es shall b e r ounded off to the nearest 
foot. Less than six inches shall be dropped off; six 
inches or more shall be raised to the next foot. 
fb) Buy-boats, run boats, or any other vessels used i n 
conjunction with commercial fishing operations, except vessels 
without motors used in connection with other licensed v e ssels 
a n d p u r se boats used in con n ection with menhaden mothe r ships, 
a r e re qu i red to meet the vessel license requirements of G.S. 
113-152. 

td Licenses fo r fish s p o t te r planes, menhaden f i shing and 
lic en s in g by mail s h all b e ha n d l ed only by the Division of 
Ma r i n e Fishe ri es. P.O. — Box — 769. Mo r ehead C i ty. N.C. 
28557-07 6 9. — All othe r licenses may b e p u r chased at a n y o f 
seve r al authorized license ag en ts loc a ted th r oughout the coastal 
count i es and in seve r al i n land counties. 

txf) A vessel endorsement to sell must b e purchased fo r every 
licensed vessel u s ed to take fish fo r sale and the endorsement to 
sel l on a specific vessel must be used when tlsh taken by that 
vessel a r e sold. 

M The non-vessel endorsement to sell fish may only be used 
to sell fish when a vessel was not used to take such fish except 
that fish taken by pay i ng passengers on vessels for hi r e or fish 
taken in conjunction with a fishing tournament may be sold w i th 
the non-vessel endorsement to sell. — Fish taken during a 
sanctioned tournament may only be sold by an author i zed 
tournament agent possessing a non-vessel endorsement to sell. 
To be elig i ble fo r a non-vessel endorsement license, tournaments 
must registe r with the Di v isio n of Ma r i ne F isheries 30 days prior 
to the tournament and must designate an authorized tournament 
s e ll in g a n d r e p o r ting agent. Any tournament so registered is a 
sanctioned tourname n t wit hi n the m e a n ing of this subsection. 

ff) Vessel owners from states which have reciprocal land or 
se ll ag r eements with North Carolina may land fish taken outside 
No r th Carol i na wate r s without pu r chasing a land or sell license 
as required by G.S. 1 13-153. A vessel endorsement to sell fish 
with an endorsement card at the established fee based o n vessel 
le n gth is required to sell fish in North Carolina. 

tg) Vessel owners from states which do not have r ec ipr o c al 
land or sell agreements with North Ca r olina taking fish only 
outside North Carolina co a stal fi s hi n g wate r s may land those 
fish with a land or sell lice n se. To sell fish i n North Carolina, 
the vessel ow n e r must also possess an endo r sement to sell at the 



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35 



TEMPORARY RULES 



e stablish e d fee based on the vessel length. 

History Note: Authority G.S. J 13-134; 1 1 3-168.4: 143B- 

289.52; 

Eff. Janiiaiy I. 1991; 

Amended Ejf. March 1. 1994; 

Temporarx Amendment Eff. Jidx f^ 1999. 

.0103 AUXILIARY VESSELS 

(a) Buy boats, run boats, purse boats or any other vessels 
used in conjunction with commercial fishin;; operations, except 
vessels without motors used in connection with other vessels 
with commercial fishinj; vessel retiistrations. are required to 
have a commercial fishina vessel registration. 

(b) A person m command of a vessel that is auxiliary to a 
vessel with a commercial tlshini; vessel registration with a 
person aboard who holds a Standard Commercial Fishing 
License or a Retired Standard Commercial Fishmg License 
engaged in a commercial tlshing operation usini: a pound net, 
lon^-haul. beach seine or purse seine is exempt from the 
provi.sions of G.S. 1 13-168.2 (al ). 



tlnt'ish (unprocessed or processo r ) deal e r's license . 

HistonNote; AuthorityG.S. 113-134; 113-168.1; 113-168.2; 

113-168.5; 113-168.6; 113-169; 143B-289.52; 

Eff. January 1. 1991; 

Temporaiy Amendment Eff. July 1, 1999. 

.0104 COMMERCIAL UNLOADING OF FISH 

It is unlawful to unload fish from a vessel in North Carolina 
engaged in a commercial fishing operation outside state waters 
without possessing a valid: 

( I ) Standard or Retired Commercial Fishing Licenses; or 
a Menhaden License for Nonresidents Without a 



LAI 
ill 
ill 



Standard Commercial Fishing License; or 
a Shellfish License for North Carolina Residents 
without a Standard Commercial Fishing Licenses; or 
a Land or Sell License. 



tcti It i s un lawful to tr ansport seafood without having ready 
at hand for inspection a bill of consignm e nt (bill of lad i ng) 
provided by the shipping deale r show i ng the r eon the n a m e of th e 
consigne e , name of t he shipper, the date of the shipment, and the 



(cD The following definitions shall apply for th e purpose of quantity of each product shipped. In the event the fisher 



lowing delinitions s 
de t e iin i n i n g the var i ( i us dealer lice n ses required: 

("h Shucker-packer (oyste r , scallo p o r clam) m e a ns a 

person who shucks, packs, or otherwise processes 

oysters, scallo p s or clams a n d offers such product for 

general ma r ket distributio n . 
t^ Shell stock shipper means a person engaged in any 

t)the r oyste r , scallop o r clam dealer activity not 

defi n ed as a shucker-packe r . 
t^ Crab processor means a person who cooks, picks. 

prepares a n d offers hard crab meat for general market 

d i s tri bution. 
t+) Unprocessed crab dealer means a person engaged m 

a n y ot h e r c r ab d e ale r activ i ty n ot d ef i ne d as a c r ab 

tfr) Shrimp processor means a person who peels, deveins. 

a n d/o r b r eads shrimp a n d offers such p r ocessed 

pr oduct to r g en e r al ma r ket distribution. 
t6l Unprocessed shrimp dealer means a person who 

engages in any oth er sh rim p d e al er acti\ 'i ty n ot 

defined in shrimp processor. 
th F i nfish p r ocessor means a person who processes 

finfish through th e st ag e s of head in g, gutt i ng, filleting 

(or simila r stage), ca nn i n g, de b o n i n g. a n d/o r g r i n ding. 

and offe r s fo r ge n e r al wholesale ma r ket distribution. 
t8l U n p r oc e ssed finfish dealer means a person who 



engages in any othe r lintis 
defined i n finfish p ro cesso r 
lof ashuckc 



h deale r activity not 

(+r) Persons in p ossess i on of a shucke r -packe r (oy s te r , scallop 
nr clam). crab processo r , s hrim p p r ocessor, or finfish processor 
l icen s e m ay a l so ope r ate a d e hydrating plant for the species 
g r oup fo r which the processor license has b e en secured. 
D e hyd r atio n o f any species for which a p r ocesso r l ice n se has n o t 
been issued will require an unp r ocessed finfish deale r license. 

tn Any person deal in g i n fish not included in th e c a te g o rie s 
of Pa r agraph (a) a n d ( h ) of t h is Rule must secure Ihc appropr i ate 



ity 01 eacn proauct snipped, in tne event tne tisnerman 
taking the seafood is also a deale r a n d sh i ps f r om t he p o i n t of 
landing, all re co rd s of bills of consignment shall be recorded at 
the point of landing. 

t+rt F i shermen who transport their catch to deale r s a r e not 
r equi re d to abide by this Rul e . 

History Note; AuthorityG.S. 113-168.1; 1 1 3-168.2; 1 1 3- 

168.4; 113-169; 113-169.5; 143B-289.52; 

Eft: January 1 . 1991; 

Temporan Amendment Eff. July 1_^ 1999. 

.0105 BAIT DEALERS 

Persons dealing in minnows, live shrimp, or both minnows 
and live shrimp for bait purposes, who are subject to licensing 
requirements under G.S. 1 13-169.3 1 13-156 are required to 
purchase only the license applicable to finfish dealers. A bona 
fide dealer in shrimp, licensed under the provisions of G.S. 1 13- 
169.3, 1 13-156. may, however, deal in minnows as well as live 
shrimp for bait purposes, as an incident of his operations under 
his shrimp dealer's license. 

History Note; Authority G.S. 113-134; 113-169.3; 1438- 

289.52; 

Eff. January I. 1991; 

Temporary Amendment Eff. July 1, 1999. 

.0106 DISPLAY OF LICENSES 

(a) It is unlawful: 

(1 ) For any person to use a vessel required to be 
registered under the pro\isi(Mis of G.S. 1 13-168.6 in 
a commercial fishing operation without a current 
commercial fishing v essel registratic>n decal mounted 
t>n an exterior surface so as to be plainh visible vshen 
viewed from the port side; 

(2) To displa\ an\ commercial fishing \essel registration 



36 



NORTH CAROLINA REGISTER 



July L 1999 



14:1 



TEMPORARY RULES 



decal not issued for the vessel displaying it. 

(b) It is unlawful to fai] to display any fish dealer's licenses 
required by G.S. 1 13-169.3 and ocean fishinij pier license 
required by G.S. 1 13-169.4 in preeminent public \'iew in each 
location subject to licensing. 

(c) It is unlawful to display any license other than the current 
licenses for that license year. 

It is unlawful to off e r for sale tlsh purchased from a licensed 
dealer w i tho u t ha v ing ready at hand a receipt or bill of purchase 
to ve r ify the purchase of said fish. 

HistoryNote: Authority G.S. 113-168.6; 1 13-169.3; J 13- 

169.4; 143B-289.52; 

Eff. Jaiwaiy 1. 1991; 

Temporaiy Amendment Eff. July 1, 1999. 

.0107 LOST LICENSE REPLACEMENT 

Lost licenses, endorsements, and commercial fishing vessel 
registration decals may be replaced upon payment of a fee of ten 
dollars ($10.00) or a fee equal to Uic initial cost of the license, 
endorsement, or commercial llshing \essel registration, 
whichever is less. 
fal It is unlawful: 
Hi F o r a n y person to us e a vess e l re qu ire d to be licens e d 
under the provisions of G.S. — 113-1 52 without a 
cur r ent license de c al mou n t e d on a n e xt eri o r su r face 
o r i n th e rigging so as to he p l ainly visi bl e w h e n 
viewed from the port side: 
f2i To di s play a n y lic en se decal n ot i ssued for the vessel 

d i splaying it: 
tfh F o r t he p er son in charge of a vessel to fail to have 
re ady at ha n d fo r i ns p ect ion the current license receipt 
for the vessel conce r ned. 
fb) It is unlawful to fail to display any dealer's licenses 
re q uire d by G.S. 1 13-15 6 and ocean pier license required by 
G.S. 113-156.1 m p r omi n ent public view in each location 
su bj ect t o lic ensi ng. 

HistnnNote; AitthormG.S. 113-134; 113-168.1; 113-168.6; 

113-169.4; 113-173; 143B-289.52; 

Eff. Januaiy 1. 1991; 

Temporan Amendment Eft. Jnl\ l_^ 1999. 

.0108 LICENSE TRANSFERS 

(a) Licenses to Land Flounder from the Atlantic Ocean may 
only be transferred: 

( 1 ) with the transfer oi the ownership of a \'essel that the 
licensee owns that indi\iduallv met the eligibility 
requirements oi" i5A NCAC 30 .()10l(b)( 1 )(A) and 
(b)( 1 >(B) to the new owner of that \essel. Transfer of 
the License to Land Flounder from the Atlantic Ocean 
transfers all fleiunder landings from the Atlantic 
Ocean associated with that vessel: or 

(2) by the owner of a vessel to another vessel under the 
same ownership. 

Any transfer oi license under this Paragraph may only be 



processed through the Division oi Marine Fisheries Morehead 
City Office and no transfer js effective until approved and 
processed by the Divisicen. 

(b) Commercial Fishing Vessel Registration Transfer. When 
transferring ownership of a vessel bearing a current commercial 
fishing vessel registration, the new owner will follow the 
requirements in 15A NCAC 30 .0101 and p ay a replacement fee 
oi ten dollars ($10.00) for a replacement commercial fishing 
vessel registration. The new owner must submit a form provided 
by the Division with the signatures oi the former licensee and 
the signature of the new licensee notarized. 

(c) Standard or Retired Standard Commercial Fishing License 
transfers: 

( 1 ) A Standard or Retired Standard Commercial Fishing 
License may only be transferred \j_ both the transferor 
and the transferee have no current suspensions or 
revocations oi any Marine Fisheries license 
privileges. 



01 



ill 



License eligibility privileges accruing to any 
individual, such as historic landing s or participation in 
a fishery, shall be assigned by the Division to a 
specific Standard or Retired Standard Commercial 
Fishing License held by that indi\'idual. At the time 
oi the transfer of a Standard or Retired Standard 
Commercial Fishing License, the transferor must 
indicate the extent of the transfer of the transferor's 
license eligibility pri\ileges m a particular fisher\'. ii 
any. The transferor may retain residual license 
eligibility pri\Heges only ii the transferor holds an 
additional Standard or Retired Standard Commercial 
Fishing License. 

To transfer a Standard or Retired Standard 
Commercial Fishing License, the following 
infomiation is required: 

(A) information on the transferee as set out in 15A 
NCAC 30 .0101: 



(B) notarization oi the current license holder's and 
the transferee's signatures on a transfer form 
provided by the Division: and 

(C) when the transferee is a non-resident, a written 
certified statement from the applicant listing 
any violations invohing marine and estuarine 
resources during the previous three years. 

(D) when the transferor is retiring from commercial 
fishing, the transferor must submit e\idence 
showing that such retirement has in fact 
occurred, for example, evidence oi the transfer 
oi aU licensee's Standard Commercial Fishing 
Licenses, sale of aU the licensee's registered 
vessels, or discontinuation oi any active 
involvement m commercial fishing. 

Properly completed transfer forms must be returned to 
Division Offices by mail or in person: and 
(4) The Standard or Retired Standard Commercial 
Fishing License which is being transferred must he 
surrendered to the Division at the time of the transfer 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



37 



TEMPORARY RULES 



ill 



application. 
Fees: 



IB] 



Transferee must pay a replacement fee of ten 
dollars ($10.00.) 



16] 



s uspe n ded o r re voked. 

th) fc ost D e ale r 's. Oc e a n P i er, and Shellfish and Crab and 
n on -vessel endo r sement to s e ll licenses may be replaced upon 
sub m issio n of e vidence t o the Division of Marine Fish e ries that 
a cu rren t lice n se h a s bee n pu r chased and is not suspended or 
re voked. 

HistoryNote: AulhoriuG.S. 113-134: 113-168.1: 113-168.2: 
113-168.3: 113-168.6: 143B-289.52: 
Eff. January- J, 1991; 
Amended Eff. March 1. 1994: 
Tcmporarx Amendment Eff. Julx 1_^ 1999. 

.0109 ASSIGNMENT OF SCFL 

(a) The Division of Marine Fisheries will provide assignment 
fonns upon issuance of the Standard Commercial Fishing 
License. Assignment must he made on the Division assignment 
forms. On the assignment form, the Standard Commercial 
Fishing License h()lder must designate what, if anv. 
endorsements are included m the assignment. Endorsements 
may not be assigned independent of the Standard Commercial 

Fishing License, the Administrator/E.xecutor Fishing License. It is unlawful for the Standard Commercial 

must give written notification within six 

months after the Administrator/Executor 



Transferee must pay the differences in fees as 
specified m C^S, 113-168.2<c) or OS, 113- 
168.3(b) when the transferee who is a non- 
resident is being transferred a resident Standard 
or Retired Standard Coinmercial Fishing 
License. 
(C) Transferee must pay the differences in fees as 
specified in G.S. 1 13-168. 2(e) when the license 
to be transferred is a Retired Standard 
Commercial Fishing License and the transferee 
is less than 65 years old. 
Transfer of Standard or Retired Standard Commercial 
Fishing License for Deceased Licensees: 
(A) Only when the deceased licensee's immediate 
surviving family member(s) is eligible to hold 
the deceased's Standard Ct)mmercial Fishing 
Licenses or Retired Standard Commercial 



(BJ 



qualifies under G.S. 28A to the Morehead City 
Office of the Divisit)n of Marine Fisheries of 
the request to transfer the deceased's license to 
the estate Administrator/Executor. 
A transfer to the Adminislralor/Executor will 
be made according to the pro\isions of 
Subparagraphs (c)(2) - (c)(4) of this Rule. The 
Administrator/Executor must provide a copy of 
the deceased licensee' sdcath certificate, a copy 
of the certificate of administratic)n and a list of 
eligible immediate family members to the 
Morehead City Office ol" the Division ot' 
Marine Fisheries. 



Fishing License holder to faj] to submit the completed 
assignment form to the Morehead City Division Office in person 
or by mail. An assigninent is in effect from the date specified on 
the assignment form and when: 

( 1 ) assignment form is properly completed; 

(2) signatures oi" the cuiTcnt license holder and the 
assignee are n(nari/ed; and 

(3) assignee has m their possession the original actual 
Standard Commercial Fishing License with 
endorsements of the current license holder. 

(h) Assignments terminate when: 
( 1 ) date specified on the assignment form is reached; or 



Oi 



iC] 



The Administrator/Executor may only transfer 
a license in the Administrator/Executor name 
on behalf of the estate to a eligible sur\i\ing 
family member. The sur\ iving family member 
transferee may only transfer the license to a 



ill 



14) 
I5i 



third party purchaser (if the deceased licensee's 

fishing vessel. Translers will be made 

according to the pro\'isions oi Subparagraphs 

(cm2) ; (c)(4) of this Rule. 

(d) Transfer forms submitted w ilhout complete and required 

information will be deeined inccimpletc and will not be 

ccinsidered further until resubmitted with all required 

information. 



(e) It IS unlawful for a person to accept transfer of a Standard 
or Retired Standard Commercial Fishing License for which they 
are ineligible. 



tul Lost vess e l l i cense i n clud i ng endo r sement to s ell and 
d e cal may be replaced u p on payment of a fee of five dollars 
($5.00) and submissio n of evide n ce to the D i vision of Mar i ne 
Fisheries that a cu rr e n t l i c ense has been purchased and is not 



licensee or assignee are deterinined ineligible for a 
license or assignment; or 

Division recei\es a notarized statement from the 
current license holder stating a revised date for an 
earlier assignment termination; or 
upon the licensee or assignee'sdeath; or 
the Standard Commercial Fishing License expires. 
If the properly completely assignment iorm is not received by 
the Di\'ision within five days from the date it was signed, the 
assignment js null and void. For an extension of time for 
assignments, a new assignment form must be completed m 
accordance with Subparagraphs (a)( 1 ) ; i3_) of this Rule. 

[cj It js unlawful for an individual assigned a Standard 
Commercial Fishing License to laij to have available readN at 
hand for inspection all required documents as stated under G.S. 
1 13-168. 1. The assignee w hen in\ >il\ cd in a commercial fishing 
operation must have the original actual Standard Ctimmercial 
Fishing License and any assigned endorsements and a copy of 
the assignment form in their pt)ssession ready for inspection. 

(d) All landings occurring d uring the time of the assignment 
will be credited to the Standard Commercial Fishing License 
holder, not the assignee. 

(c) It is unlawful to be assigned more than a single Standard 



38 



NORTH CAROLINA REGISTER 



July I, 1999 



14:1 



TEMPORARY RULES 



Commercial Fishing License at any one time. It is unlawful to 
assign a Standard Commercial Fishing License to more than one 
individual at any one time. Assignments can only be made by 
the person issued the Standard Commercial Fishing License and 
can not be further assigned by assignees. 

(Ij It is unlawful for a person to accept assignment ot" a 
Standard Commercial Fishing License for which they are 
ineligible. A nonresident is not eligible for assignment of a 
resident Standard Commercial Fishing License. 

(g) Assignments submitted without complete and required 
information will be deemed not in effect and will not be 
considered further until resubmitted with all required 
information. 

(h) It is unlawful for any assignee of a Standard Commercial 
Fishing License not to return the assignment and the Standard 
Commercial Fishing License with any assigned endorsements to 
the assignor of that license within five days of notice that the 
assignment has been terminated or a demand by the ass i gnor to 
return the license. 

It is unlawful for any lice n se e to refuse to surrender to an 
agent of the Secreta r y all license certificates, license receipts, 
license decals. and othe r forms and records relating to the 
lice nse following personal se r vice of n o t ice of suspension or 
r evoca ti on of licenses in acco r dance withG.S. 1 13- 1 66 (d). It i s 
unlawful for any person in custody o r possession of any such 
ce i lificate, rece i pt, decal. foini. o r r eco r d r equ ire d to be 
sur r endered to refuse to sur r ender same to an agent of the 
Secretai7 making such demand. 

HistorxNote: AiithorinG.S. 113-134; 113-168.1: 113-168.2; 

J 13-168.5; 143B-289.52; 

Eff. Janiian- 1, 1991; 

Teinporan' Amendment Eff. Juh l_^ 1999. 

.0110 LICENSE REFUNDS 

All license fees are non-refundable except when licenses are 
issued by the Division in error. 

tal A cur r ently valid vessel license m a y be transferred from 
o n e v e ssel to anothe r vessel pu r chased by the owner upon the 
surrende r of the l i cense re ceipt a n d decal f r om the originally 
l i c en sed v e ssel to the Divisio n of Marine Fisheries. Morehead 
City Office, and purchase of a v e ssel lice n se for the n ew vessel 
at full cost. — All other requir e ments fo r pu r c h asing a vessel 
license apply to this t r a n saction. 

fbl U p o n transfe r of owne r ship of a vessel bear i ng a cu rre nt 
valid vessel license, a vessel license may be tr ansfe rr ed from the 
previous owner to the new owne r b y completing the ownership 
transfer section on the gold colo r ed license receipt. P r oof th at 
vessel ownership has been transfer r ed to the new owner is 
r equ ir ed. Proof may include a notarized bill of sale or a vessel 
r eg i st r ation transfer or documentation transfer. 

HistorxNote; Authority G.S. 113-134; 113-168.1; 113-173; 

143B-289.52; 147-84; 1993 (Regular Session 1994). c. 576. s. 

3; 

Eff. March 1. 1995; 



Temporarx Amendment Eff. Julx /j. 1999. 

.0111 SURRENDER OF LICENSES 

(a) It is unlawful for any licensee to refuse to surrender to an 
agent of the Secretary all licenses, license receipts, 
endorsements, commercial fishing vessel registration decals. and 
other forms and records relating to the license following 
personal service of notice of suspension or revocation of licenses 
in accordance with G.S. 113-171. 

(b) It is unlawful lor any person in custody or possession of 
any such receipt, decals. form or record required to be 
surrendered to refuse to surrender same to an agent of the 
Secretary making such demand. 

HistonNote; Authority G.S. 113-134; 1 13-171 ; 143B- 

289.52; 

Temporary Adoption Eff. Julx [^ 1999. 

SECTION .0200 - LEASES AND FRANCfflSES 

.0201 STANDARDS FOR SHELLFISH BOTTOM AND 
WATER COLUMN LEASES 

(a) All areas of the public bottoms underlying coastal fishing 
waters shall: 

( 1 ) Meet the following standards in addition to the 
standards in G.S. 113-202 in order to be deemed 
suitable for leasing for shellfish purposes: 

(A) The lease area must not contain a natural 
shellfish bed which is defined as 10 bushels or 
more of shellfish per acre. 

(B ) The lease area must not be closer than 100 feet 
to a developed shoreline. In an area bordered 
by undeveloped shoreline, no minimum 
setback is required. When the area to be leased 
borders the applicants property or borders the 
property of riparian owners who have 
consented in a notarized statement, the 
Secretary may reduce the distance from shore 
required by this Rule. 

(C) Unless the applicant can affirmatively establish 
a necessity for greater acreage through the 
management plan that is attached to the 
application and other evidence submitted to the 
Secretary, the lease area shall not be less than 
one-half acre and shall not exceed: 

(i) 10 acres for oyster culture; 
(ii) 5 acres for clam culture; or 
(iii) 5 acres for any other species. 

This Subparagraph shall not be applied to reduce any 

holdings as of July 1. 1983. 

(2) Produce and market 23 bushels of shellfish per acre 
per year to meet the minimum commercial production 
requirement or plant 25 bushels of cultch or seed 
shellfish per acre per year to meet commercial 
production by planting effort. Planting effort shall be 
considered in lieu of commerc i al product i on for five 



14:1 



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39 



TEMPORARY RULES 



consecutive years beginning March 1 , 1994, or for the 
f i r st Fi v e consecutive yea r s for any leas e g r anted after 
March 1. 1994. 

(A) Only shellfish planted, produced or marketed 
according to the definitions in 15A NCAC 31 
.0101 (26), (27) and (28) shall be submitted on 
production/utilization forms for shellfish leases 
and franchises. 

(B ) If more than one shellfish lease or franchise is 
used in the production of shellfish, one of the 
leases or franchises used in the production of 
the shellfish must be designated as the 
producing lease or franchise for those shellfish. 
Each bushel of shellfish may be produced by 
only one shellfish lease or franchise. Shellfish 
transplanted between leases or franchises may 
be credited as planting effort on only one lease 
or franchise. 

(C) Production and marketing information and 
planting effort information are compiled and 
averaged separately to assess compliance with 
the standards. The lease or franchise must 
meet either the production requirement or the 
planting effort requirement within the dates set 
forth to be judged in compliance with these 
standards. 

(D) In determining production and marketing 
averages and planting effort averages for 
information not reported in bushel 
measurements, the following conversion 
factors shall be used: 

(i ) 300 oysters, 400 clams, or 400 scallops 

equal one bushel; 
(ii ) 40 pounds of scallop shell, 60 pounds of 
oyster shell. 75 pounds of clam shell 
and 90 pounds of fossil stone equal one 
bushel. 

(E) In the event that a portion of an existing lease 
or franchise is obtained by a new owner, the 
production history for the portion obtained 
shall be a percentage of the originating lease or 
franchise production equal to the percentage of 
the area of lease or franchise site obtained to 
the area of the originating lease or franchise. 

(F) All bushel measurements shall be in U.S. 
Standard Bushels. 

(b) Water columns superjacent to leased bottoms shall meet 
the standards in G.S. 1 13-202.1 in order to be deemed suitable 
for leasing for aquaculture purposes. 

(c) Water columns superjacent to duly recognized perpetual 
franchises shall meet the standards in G.S. 11 3-202.2 in order to 
be deemed suitable for leasing for aquaculture purposes. 

(d) Water column leases must produce and market 100 
bushels of shellfish per acre per year to meet the minimum 
commercial production requirement or plant 100 bushels of 
cultch or seed shellfish per acre per year as determined by 
Division biologists to meet commercial production by planting 



effort. Pla n ting effort shall be cons i de r ed in lieu of commercial 
pr oduction for five consecutive yea r s beginning March 1 , 1994, 
o r for the f ir st fi v e consecutive years fo r any lease granted after 
March 1, 1994. The rules for determining production and 
marketing averages and planting effort averages shall be the 
same for water column leases as for bottom leases and 
franchises set forth in Paragraph (a) of this Rule. 

History Note: Authority G.S. 113-134; 113-201; 1 13-202; 

113-202.1; 113-202.2; 143B-289.4; 

Ejf. January 1. 1991; 

Amended Eff. May 1. 1997; March 1. 1995; March 1. 1994; 

September 1 1991; 

Temporary Amendment Eff. Julx 1_^ 1999. 

SECTION .0300 - LICENSE APPEAL PROCEDURES 

.0301 ELIGIBILITY FOR RECREATIONAL 
COMMERCIAL GEAR LICENSES 

(a) It is unlawful for any individual to hold more than one 
Recreational Commercial Gear License. 

(b) Recreational Commercial Gear Licenses shall only be 
issued to individuals. 

ta) If th e Chairman of the Marine Fisheries Commission and 
the Director of the Div i s i on of Marine Fisheries do hot intend to 
serve as members of the Appeals Panel, they may each name a 
designee and a n alternate designee. 



unable to attend a meeting of the 



ttr) A desig n ee who is 
Appeals Panel shall n otify his or he r alternate at least 24 hours 
before the meet i ng. 

td The Chai r of the Appeals Pa n el (Chair) shall be the 
Chairman of the Marine Fisheries Commission or any membe r 
of the Ap p eals Panel designated as Chair by the Chaii i nari of the 
Marine Fisheries Commission. 

t&i Tlie Appeals Panel shall not act upon a petition without a 
q uo i u i n. Two or more membe r s of the Appeals Panel constitute 
a quorum. 

Histo)y Note: Filed as a Temporaiy Adoption Eff. August 9. 

1994, for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 113-134; 113-170.4; 113-173; 113-221; 143B- 

289.52; 

Eff. Februaiy 1. 1995; 

Temporary Amendment Eff. Julx 1. 1999. 



.0302 AUTHORIZED GEAR 

(a) The folio wing are the only 
authorized (including restrictions) 



commercial fishing gear 
for use under a valid 
Recreational Commercial Gear License: 

( I ) When used in slate waters, v. ith or without a vessel, 
spears. Hawaiian slings or similar devices which 
propel pointed implements by mechanical means, 
including elastic tubi ng or bands, pressurized gas or 



(21 



similar means: 

With or without a vessel 



gigs or other pointed 
implements which are propelled by hand, w hether or 



40 



NORTH CAROLINA REGISTER 



July I, 1999 



14:1 



TEMPORARY RULES 



not the implement remains in the hand; 

(3) One seine 30 feet or over in length with a mesh length 
less than 2'/2 inches, pulled hy hand. Mechanical 
methods tor using the seine are not authorized for 
recreational purposes; 

(4) One shrimp trawl with a headrope not exceeding 26 
feet in length per vessel. Mechanical methods for 
retrieving the trawl are not authorized for recreational 
purposes; 

(5) With or without a vessel, five eel, fish, shrimp, or 
crab pots in any comhination. except only two pots of 
the five may be t^ pots. Peeler pots are not 
authorized for recreational purposes; 

(6) One multiple hook or multiple bait trotline up to 100 
feet in length; and 

[7] Gill Nets: 

(A) Not more than 100 yards of gij] nets with a 
mesh length equal to or greater than 2'/2 
inches. Attendance is required at all times; 

(B) Not more than 100 yards oi' gU] nets with a 
mesh length equal to or greater than 5 Vi 
inches. Attendance is required when used 
from one hour after sunrise through one hour 
before sunset; and 

(C) Not more than 100 yards of gUl net may be 
used at any one time. 

(bj It is unlawful to use more than the quantity of authorized 
gear specified in Subparagraphs (a)(3) -__ (a)(7) of tfus Rule, 
regardless of the number of indi\iduals aboard a vessel 
possessing a valid Recreational Commercial Gear License. 

(c) It is unlawful for a person to violate the restrictions of or 
use gear other than that authorized by Paragraph ( a) of this Rule. 

(d) Unless otherwise provided, this Rule does not exempt 
Recreational Commercial Gear License holders from the 
provisions ot' other applicable rules of' the Marine Fisheries 
Commission or provisions of proclamations issued by the 
Fisheries Director as authorized by the Marine Fisheries 
Commission. 

The Ap p eals Panel will hold regular meetings and qua r terly 
meeti n gs. 

fil The Appeals Pan e l shal l conduct i ts regular meet i ngs 
on the fi r st a n d thi r d F r iday of each month unless the 
Ma rin e Fishe r i e s Commission is scheduled to meet on 
those dates. Regula r m ee tings may be conducted hy 
telep h o n e co n f er ence call o r in such other manner as 
the Cha ir dec i d e s. Tl i e Chair may cancel meetings or 
call addi ti o n al m eet in gs as required. — Pe r sons who 
wi s h to attend a tel ep hon e co n fe r ence call meeting 
must make writt e n request with the Fisheries Director 
at least five working days prior to the meeti n g. 

ift) The Appeals — Panel — may conduct — its — qua r te r ly 
meet i ngs in conjunction with the quarterly meetings 
of the Marine F i she ri es Co m m i ssion. 

t^i O r al p r ese n tatio n s of argu m ents and evidence may he 
conside r ed b y the Appeals Pa n el i n r e nd eri ng its 
decis i on i n accorda n ce w i th the fol l owing p r ovi s ions: 



ta) Answ e rs, by pe r son s ot h er tha n l ega l c ouns e l, to qu e stions 
asked by App e als Pa nel members during regular meetings and 
quarte r ly meeti n gs shall be evidence; 

ttr) Oral argum e n t s will only b e heard at the quarterly 
Appeals Panel Me e t i ngs. O r al arguments shall n ot exceed 15 
minutes per pa r ty. — The tim e provided for argument may be 
shortened if the Chai r detci mines a shorter time is necessa r y to 
dispose of all o t her matters on the Panel's agenda; 

tri liifoimat i on presented in an o r al argum e nt is not e vidence 
and shall not be i ncluded in the official r eco r d; and 

tdi The D i visio n of Marine F i she r ies s h all make tape 
r e c o r d in gs of all o r al argume n ts a n d p r esentatio n s. 

History Note: Filed as a Temporary Adoption Eff. August 9. 

1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 113-134: 113-173: 

Eff. Fehruan I. 1995: 

Temporary Amendment Eft. July f^ 1999. 

.0303 RECREATIONAL COMMERCIAL GEAR 
LICENSE POSSESSION LIMITS 

(a) It is unlawful to possess more than a single recreational 
possession limit when only one person aboard a vessel possesses 
a valid Recreational Commercial Gear License and recreational 
commercial fishing equipmcnl as defined in 15A NCAC 30 
.03()2(a) IS used, regardless ot' the number of persons on board. 

(b) It is unlawful to possess individual recreational possession 
limits in excess of the number of individuals aboard a vessel 
holding \'alid Recreaticmal Commercial Gear Licenses. 

(c) ll is unlawful for any person who holds both a 
Recreational Commercial Gear License and a Standard or 
Retired Commercial Fishing License and who is in possession 
of identified recrealional commercial fishing equipment as 
defined in i5A NCAC 30 .0302(a). to exceed the single 
recreational possession limit. 

(d) It is unkmful for perst>ns aboard a vessel collectively 
holding only one Recrcaticinal C()mmercial Gear License and 
any Standard Ccnnmercial Fishing License or Retired 
Commercial Fishing License and who are in possession of any 
identified recreaticMial commercial fishing equipment as defined 
in ISA NCAC 30 .()302(a). to exceed one recreational 
possession limit. 

tal U n de r the Statut e s aulho ri / i ng issuance of special 
licenses in cas e s of emerge n cies o r hardships, the most 
im po r ta n t criterion is the demons t ration of emergency or 
ha r dsh i p. — The Appeals Panel m u s t and shall deny 
p etitio n s — which — farl — to demonstrate — emergency — or 
ha r dship consistent with the p r ov i sio n s of 1 5 A NCAC 30 
.0305 and .0306. 
Ht) The co n tents of an appeal petition are as follows : 
Hi Peti t ions that do not contain the following items shall 
b e returned to the pel i l i o n er without be i ng p r oc e sse d: 
(tV) A completed Ap p eals L ic e n se Ap p licat i o n; 
tBi A sta t ement of the license(s) being requested; 
td Whe r e a vessel license is requested, a copy of 



14:1 



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41 



TEMPORAR Y RULES 



the — le g i s ti a ti on/documentation — iiifoiiiidtioii 
wl 'i icl ' i id e ntifies tlie vessel; 

t&) The petitioner's notarized signature; and 

(E) Where petitioners aie not resid e nts of No r th 
CaroUna. — ceniFication — from — the — fisheries 
agency of their resident state o r Jurisdiction 
sli u wing. for the time pe r iod beginning July 1 . 
1991 to the present, all lice n s e s held and any 
violations or convictions ente r ed against them, 
o r the lack thereof. 
t^ In addition, a petition shall include: 

(tV) 2^s — statement — of — emergency — or — ha r dship 
consistent with the standards in this Section: 

(fi) A list of license suspensions and revocations, 
and convictions of fisheries offenses in any 
sta t e or jurisdiction during the past thr e e yea r s; 

(€7> The — reason(s) — for — failu r e — to — obtain — the 
license(s) before July 1. 1994.. a n d in the case 
o f vessel e n dorsements to sell, between 1994 
and August 15. 1997. 

t©) A list of commercial f i sh i ng license(s). from 
any state or jurisdiction, held by the pet i tioner 
since July 1. 1991. with identifying license 
number and issuing agency: and 

(E) R equest fo r oral argument, if desired. 

A petition may be acco i npanied by : 

t7^ Evidence demonstrati n g the extent to which the 
p e t i t ione r relies on commercial fishing as a 
livelihood, suc h as tax records, sales records, 
trip tickets, and similar information, 
Swo rn — aff i dav it s — by — others — verifying — or 
supporting the information in the petition; 
Exhibits and any other e vi de n ce to be offered 
i n s up p o r t of the appeal; and 
A statement waiv i ng the opportunity to reply to 
the — D i V i s i o n — of — Marine — Eisheries 



m 



an o r igi n al and fou r copies of the reply a n d supporting 



History Note: Filed as a Temporan Adoption Eff. August 9. 

1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 113-134: 113-170.4: 113-173; 143B-289.52; 

Eff. Februaiy I, 1995: 

Temporaty Amendment Eff. June 7. 1998: 

Amended Eff. April 1 . 1999: 

Temporan' Amendment Eff. Juh 1_^ 1999. 

.0304 CONSIDERATION OF APPEAL PETITIONS 

tal Petitions received b y the D i vision of Marine Eisheries 15 
working days before an Appeals Panel meeting shall be 
determined no later than the next meeting if the petitioner 
waived the o p po r tunity to reply to the Division of Marine 
Eisheries recommenda t ion in the petition. — All other petitions 
shall be deteiiiiined no later than the first Appeals Panel m eet i ng 
occur r ing at least 10 days after the r e p ly to the D i vision of 
Ma r ine Eishe r ies reco m mendation is due to be filed. 



ttr) When 



m 



a petitioner requests o r al a r gument, the petition 
shall be decided at the next quarterly Ap p eals Pa n el meet i ng 
occur r ing at least 1 5 working days after the petition is submitted. 
When a petitioner requests o r al argument and an opportunity to 
reply to the Division of Marine Eisher i es r ecommendation, the 
petition shall be decided at the next quarterly Ap p eals Panel 
meeting occurring at least 10 days after the reply is due to be 
iiieu. 

td h i deciding appeal petitions, the Appeals Panel shall 
consider only info r mation presented in accorda n ce with this 
Se c tion a n d the status report by the Divisio n of Marine Eisheries 
on the number of licenses issued in each ca t egory. 

t&i When the vote of tfie Appeals Panel is tied, the petiti o n 
shall be decided at the next meeting of the Appeals Panel. Einal 
decision on a petition may only be defer r ed once under this 
provision. Tliis meet i ng will not be adjourned until a decision 
is made. 

History Note: Filed as a Temporaiy Adoption Eff. August 9, 

1994, for a period of 180 days or until die permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 113-134: 113-153.1: 1993 (Regular Session 

1994). c. 576, s. 3; J43B-289.4: 

Eff. February 1. 1995: 

Temporan- Repeal Eff. Juh 1. 1999. 

.0305 EMERGENCY LICENSES 

A 30-day emergency license may be issued upon a showing 
recommendation is sent to the Appe al s P an el, the Division of thai death, i llness, or incapacity of a licensee would make it 

impossible — to continue — the — f ishery — operation — unless — an 



r eco m me n dation. 



(d Requests for oral arguments m ay o n ly be made in the 
a pp eal peti ti on. 

(d) Petitions, evidence, a n d su p porting information may only 
be filed with the Division of Ma r ine F i s h e r ies at i ts offices in 
Mo r ehead City or by mailing to Post Office Box 769. Mo r ehead 
City. No rt h Ca r o l i n a 28557-0769. Tlie petition shall not b e 
processed until the petitione r provides an original and four 
copies of the petition and supporting information. 

(r) The Division of Marine Eisheries shall submit its 
r ecommendatio n and a n y other releva n t in format i on on each 
app eal to the Appeals Panel within 10 wo r king days of the 
receipt of a com p lete pe ti tion. On the same day the 



M 



Eisheri 



shaif- 



of its recommenda t ion on 



arine I ' lsneries snail serve a copy ot its re 
the petit i one r by depositi n g it in first class mail, hand delivery. 
o r f acsim i le delive r y. 

tf) Any — repty^ — to — the — Division — of Mari n e — Eisheries 



recommendation must be filed with t he D i v i sion of Marine 
Eisheries within 10 days after the recommendation is se r ved. 
The petition shall not be processed until the petitioner pr ovides 



emergency license is issued to the petitioner. 

rh Upon req u est by a pet i tioner, the Chaii may suspend 
or shorte n any procedures that would prevent the 
petition from being considered at the next Appeals 
Panel m eeting occuii ing not less than tlii ' ee days after 
the r equest is made. 



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TEMPORARY RULES 



(2^ An e mergency license may not be renewed. 

(5) An emergency licens e do e s not qualify the licensee to 
be issued a renewal lic e nse pursua n t to Sec ti o n 3 (c) 
of Chapter 570 of th e 1993 (Regular Session 1994) 
S e ssion Laws. 

History Note: Filed as a Temporary Adoption Ejf. August 9. 

1994, for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Autlwrit}- G.S. 113-134: 113-153.1: 1993 (Regular Session 

1994). c. 576, s. 3: 143B-289.52: 

Ejf. Februaiy 1, 1995: 

Temporan' Repeal Elf. July 1 , 1999. 

.0306 HARDSHIP LICENSES 

The following criteria will be applied in approving or denying 
petitions based on hardship: 

tH A petition will be denied unless it demonst r ates at 

leas t one of the following ci r cumstances: 

fal For each license applied fo r , the petitioner has 
held that license or a n equivalent co m me r c i al 
fishing license from North Carolina or from 
another state or jurisdict i on in two out of the 
three years prior to the morator i um applicable 
to that license; and petitioner can demonstrate 
extenuating or extraord i nary c i rcumstances 
which prevented him or her from obtaining the 
North Carolina commercial fishing license for 
1993-1994 or. in the case of the vessel 
endorsement to sell, for any of the years from 
1994 through 1997; 

(h) It can be demonstrated that petitioner did not 
obt ai n a 1993-1994 license b e ca u se petitioner 
was on active military duty outside the state 
and that fo r two out of the th r ee yea r s previous 
t o going on activ e mil i ta r y duty, pet i tio n e r held 
the license being applied fo r ; 

ix) The petit i one r has become 16 yea r s of ag e 
since — Jtme — 30; — 1994 ; — has — a — histo r y — of 
comme r cial — f i shing — with — ttierr — parent — or 
guardian; — and — holds — a Shellfish — or Crab 
License; 

t&i A membe r of th e pe t itioner's immediate family, 
who holds a cur r ent l i ce n se, has d i ed, is 
i nc ap acitated. — or — rs — r etir in g — from — the 
commercial Fishery; the petitio n er needs the 
license to co n tinue in that fishery operation; 
and the f amily member will su rr ende r the 
license upon approval of the pet i tio n; 

(ei The petitioner is applying fo r a commercial 
vessel license; does n ot have and has n ot 
applied for a vessel endo r sement to sell fish; 
can de m o n strate that the license is necessary to 
pr ovide nutritio n al subsistence for petitioner's 
household which pe t itioner is otherwise unable 
to afford; and petitio n er ag r ees to restrict 



possession offish to recreational size and creel 
l i n ' iits: or 
if) The petitioner can d e monstrate facts similar in 
hardship to the preceding si t uations. 

(^ H a r dsh ip and eme r ge n cy licenses are issued solely to 
the pet i tio ner based u p on individual demonstration of 
need. A pet i t i on m a y be de n ied i f t he Appeals Panel 
finds that the petitioner is un abl e to demonstrate a 
substantial adverse effect on his or he r livelihood in 
t he event the license is denied. 

(tH The petition shall be den i ed if, the petitioner has a 
his t ory of fishing law violations which would cause 
petitioner to be ineligible for a license in North 
Carolina or has a h i story of su b stantial noncompliance 
wi t h federal or state laws, regulations, or ru l es for the 
p r ot e ction of marine and estuarine resources in any 
state o r ju r isdict i on. 

(4) Tlie holde r of a cu rr ent and valid ha r dship license on 
June 30 of the lice n se year has the same eligibil i ty to 
r e n ew the lice n se as pe r so n s n ot su bj ect to the 
mo r ato ri um. 

History Note: Filed as a Temporaiy Adoption Eff. August 9, 

1994, for a period of ISO days or until the permanent rule 

becomes effective, whichever is sooner: 

Authoritx G.S. 113-134: 113-153.1: 1993 (Regular Session 

1994). c. 576, s. 3: 143B-289.52: 

Eff. February I, 1995: 

Temporary Amendment Eff. June 7, 1998: April 6. 1998: 

Amended Eff. April I, 1999: 

Temporan Repeal Eff. Julx 1, 1999. 

.0307 APPEALS PANEL FINAL DECISION 

fal An approval of a petition shall be a final decision that 
shall be entered the same day it is approved by the Appeals 
Panel. — Licenses approved under these Rules shall be issued 
upon payment of the requ i red fee, subject to any cond i tions 
imposed by the Appeals Panel. Licenses issued under the Rules 
in this Section shall be specially denoted as emergency or 
h a r dsh ip licenses and shall state the revocation provisions of 
these Rules and any other conditions imposed by the Appeals 
i^anei. 

ttrl I f a license i s approved under 1 5 A NCAC 30 .030G( I )(d), 
it shall o n ly be issu e d u p o n the surrender of a license by the 
cur r e n tly licensed family m ember. 

fcl Emergency and hardship licenses shall only be issued by 
the D i v i s i o n o f Marine Fisheries at its Morehead C i ty Office. 

tdl De n ials of l i censes s h all b e se r ved within 10 working 
days of the decision by the Appeals Panel. 

tei The Appeals Panel shall issue a wr i tten order setti n g fo r th 
the basis for each approval or denial of a p e t ition. — For a 
hardship license petition, the order shall set forth the g r ou n ds fo r 
the decision as listed in 1,SA NCAC 30 .03()6( 1 )(a)-(e). Whe n 
the basis for the approval is 15A NCAC 30 .()3()6( I )(e), the 
order shall state the spec i fic g r ounds demo n strating hardsh i p. 

tf) An Ap p eals Pa n el de ni al becomes final eithe r upon 



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43 



TEMPORARY RULES 



pe t ition er 'sfili n g for judic i al review und er G.S. 150B-43 et seq. 
or 30 days afte r tlie decision is served, w i iic he v e r occurs fi r st. 

History Note: Filed as a Temporary Adoption Ejf. August 9, 

1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 113-134: 113-153.1: 1993 (Regular Session 

1994). c. 576. s. 3: 143B-289.52: 

Eff. February I, 1995; 

Temporary- Repeal Eff. Jul\ [^ 1999. 

.0308 OFFICIAL RECORD 

The official record of an Appeals Panel decision for judicial 
r eview shall consist of the follow i ng : 

Mi The petition and any othe r items s ubm i t ted by the 

p e titione r ; 
(^ Th e Division of Marine Fisheries recommendation. 

and any supporting information; 
(Si The Division of M arin e Fi she r i e s status r e p o r t on 
license totals; 

(4) The petit i oner's response, if any, to the Division of 
Marine Fishe r ies recommendation; and 

(5) The Appeals Panel final decision. 

History Note: Filed as a Temporary Adoption Eff. August 9. 

1994. for a period of ISO days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 113-134; 113-153.1; 1993 (Regular Session 

1994). c. 576, s. 3; 143B-289.52: 

Eff. February 1. 1995; 

Tempor-ar-y Repeal Eff. July I, 1999. 

.0309 REASONS FOR REVOCATION 

The Ap p eals Panel shall revoke an emergency or h a r ds h ip 
license for either of the f ol low i ng reasons : 

tfi Material i i ifoinidtion submitted by the petitioner and 
relied upon by the Appeals Panel is determined to be 
false: or 
t^ Any attempt is made to transfer such license. 

History Note:Filed as a Tempor'ary Adoption Eff. August 9. 

1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 113-134; 113-153.1; 1993 (Regular Session 

1994), c. 576, s. 3; 143B-289.52; 

Eff. February 1. 1995: 

Temporar-y Repeal Eff. July 1 , 1999. 

.0310 TEMPORARY EMERGENCY VESSEL 
CRAB LICENSES 

ta) Vessel c r ab licenses may be transferred by the Fisheries 
Directo r , fo r a pe r iod not to exceed 30 days, upon a showing of 
death, ill n ess, or incapac i ty. 

(tr) A temporary emergency vessel c r ab license does not 
qualify the licensee to be issued a renewal lice n se pursuant to 
Section 3(c) of Chapter 576 of the 1993 (Regulai " Session 1994) 
Laws. 



History Note: Filed as a Temporary Adoption Eff. August 9, 

1994, for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 113-134; 113-153.1; 1993 (Regular Session 

1994). c. 576. s. 3; 1438-289.52; 

Eff. February 1, 1995; 

Temporary Repeal Eff. July 1, 1999. 

Rule-making Agency: Coasted Resources Commission 

Rule Citation: I5A NCAC 7M .0401 - .0403 

Effective Date: July 8. 1999 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. II3A-24; 1 13A-102(b); 
113-107 

Reason for Proposed Action: The amendments to the state's 
energy policies will enhance the state 's authority to object to 
offshor'e energy proposals that may impact coastal resources or 
uses for which inadequate irrformation has been submitted 
regarxling impacts. 

Comment Procedures: Contact Kim Cr-awforxl, NC Division of 
Coastal Management. PO Box 27687. Raleigh. NC 2761 1 -7687. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7M - GENERAL POLICY 
GUIDELINES FOR THE COASTAL AREA 

SECTION .0400 - COASTAL ENERGY POLICIES 

.0401 DECLARATION OF GENERAL POLICY 

(a) It is hereby declared that the general welfare and public 
interest require that reliable sources of energy be made available 
to the citizens of North Carolina. It is further declared that the 
development of energy facilities and energy resources within the 
state and in offshore waters can serve important regional and 
national interests. However, unwise development of energy 
facilities or energy resources can conflict with the recognized 
and equally important public interest that rests in conserving and 
protecting the valuable land and water resources of the state and 
nation, particularly coastal lands and waters. Therefore, in order 
to balance the public benefits attached to necessary energy 
development against the need to protect valuable coastal 
resources, the planning of future land uses, the exercise of 
regulatory authority, and determinations of consistency with the 
North Carolina Coastal Management Program shall assure that 
the development of energy facilities and energy resources shall 
avoid significant adverse impact upon vital coastal resources or 
uses, public trust areas and public access rights. 



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(b) Exploration for the development of offshore and Outer 
Continental Shelf (OCS) energy resources has the potential to 
affect coastal resources. The Federal Coastal Zone Management 
Act of 1972, as amended, requires that federal oil and gas 
leasing actions of the US Department of the Interior be 
consistent to the maximum extent practicable with the 
enforceable policies of the federally approved North Carolina 
Coastal Management P r og r am. Program, and that exploration, 
development and production activities associated with such 
leases comply with those enforceable policies. Enforceable 
policies applicable to OCS activities include all the provisions 
and policies of this Rule, as well as any other applicable 
federally approved components of the North Carolina Coastal 
Management Program. All permit applications, plans and 
assessments related to exploration or development of OCS 
resources and other relevant energy facilities must contain 
sufficient information to allow adequate analysis of the 
consistency of all proposed activities with these Rules and 
policies. 

Histoty Note: Authority G.S. 1 1 3A-W2{b); 11 3A-107; 

1 1 M- 124: 

Eff. March I. 1979: 

Amended Ejf. November 3, 1997 pursuant to E.O. 121. James B. 

Hunt Jr. 1997: 

Temporan Amendment Eff. Ml 8^ 1999: December 22. 1999. 

.0402 DEFINITIONS 

(a) "Impact Assessment" is an analysis which fully discusses 

the potential environmental, economic and social consequences 

consequences, including cumulative and secondary impacts, of 

a proposed project. At a minimum, the assessment shall include 

the following iiifoimalion: and for each of the following shall 

discuss and assess anv effects on any land or water use or 

natural resource of the coastal area, including the effects within 

the coastal area caused by activities outside the coastal area: 

( I ) a full discussion of the preferred sites for those 

elements of the project affecting any land or water use 

or natural resource of the coastal area. 

(A) In all cases where the preferred site is located 

within an area of environmental concern 

(AEC) or on a barrier island, the applicant shall 

identify alternative sites considered and present 

a full discussion [in terms of Subparagraphs 

(a)(2) through (9) of this Rule] of the reasons 

why the chosen location was deemed more 

suitable than another feasible alternate site. 

(Bj If the preferred site is not located within an 

AEC or on a barrier island, the applicant shall 

present reasonable evidence to support the 

proposed location over a feasible alternate site. 

(C) In those cases where an applicant chooses a 

site previously identified by the state as 

suitable for such development and the site is 

outside an AEC or not on a barrier island, 

alternative site considerations shall not be 



(2) 



(3) 



(4) 



required as part of this assessment procedure; 
a full discussion of the economic impacts, both 
positive and negative, of the proposed project. This 
discussion shall focus on economic impacts to the 
public, not on matters that are purely internal to the 
corporate operation of the applicant. No proprietary 
or confidential economic data shall be required. This 
discussion shall include analysis of likely adverse 
impacts upon the ability of any governmental unit to 
furnish necessary services or facilities as well as other 
secondary impacts of significance: 
a full discussion of potential adverse impacts on 
estuarine or coastal resources resources, including 
marine and estuarine resources and wildlife resources. 
as defined in G.S. 113-129; 



a full discussion of potential adverse impacts on 
existing industry and potential limitations on the 
availability of natural resources, particularly water, 
for future industrial development; 

(5) a full discussion of potential significant adverse 
impacts on recreational uses and scenic, 
archaeological and historic resources; 

(6) a full discussion of potential risks of danger to human 
life or property; 

(7) a full discussion of the procedures and time needed to 
secure an energy facility in the event of severe 
weather conditions, such as extreme wind, currents 
and waves due to northeasters and hurricanes; 

ffi £8} other specific data necessary for the various state and 

federal agencies and commissions with jurisdiction to 

evaluate the consistency of the proposed project with 

relevant standards and guidelines; 

t^ {9} a specific demonstration that the proposed project is 

consistent with rele\ ant local land use plans and with 

guidelines governing land uses in AECs. 

If approp r iate e n vi r on m e nt al d o cuments are prepared and 

r evi e wed u n de r th e provisions of the National Environmental 

Policy Act (NEPA) o r the North Carolina Environmental Policy 

A c t (NCEPA), th i s review will satisfy this definition of "impact 

assessme n t" if a l l issues listed in this Rule are addressed and 

t hese documents a r e s ubm itted in sufficient time to be used to 

r ev i ew state pe inii t appl i cations for the project or subsequent 

consistency detei i riinations. 

Anv impact assessment for a proposal for oil or gas exploration 
activities shall include a fu]] discussion of the items described in 
Subparagraphs (a)( I ) through (9) at Uns Rule for associated 
exploration activity, including aH reasonably foreseeable 
exploration wells and ajny delineation activities that are 
reasonably likely to lollow a disccnery of oij or gas. 

(b) "Major energy facilities" are those energy facilities which 
because of their size, magnitude or scope of impacts, have the 
potential to affect any land or water use or natural resource of 
the coastal area. For purposes of this definition, major energy 
facilities shall include, but are not necessarily limited to, the 
following: 

( 1 ) Any facility capable of refining oil; 



14:1 



NORTH CAROLINA REGISTER 



July L 1999 



45 



TEMPORARY RULES 



(2) Any terminals (and associated facilities) capable of 
handling, processing, or storing liquid propane gas. 
liquid natural gas, or synthetic natural gas; 

(3) Any oil or gas storage facility that is capable of 
storing 15 million gallons or more on a single site; 

(4) Electric generating facilities 300 MGW or larger; 

(5) Thermal energy generation; 

(6) Major pipelines 12 inches or more in diameter that 
carry crude petroleum, natural gas, liquid natural gas, 
liquid propane gas, or synthetic gas; 

(7) Structures, including drillships and tloating platforms 
and structures relocated from other states or countries, 
located in offshore waters for the purposes of 
exploration for, or development or production of. oil 
or natural gas; and 

(8) Onshore support or staging facilities related to 
exploration for. or development or production of. oil 
or natural gas. 

(c) "Offshore waters" are those waters seaward of the state "s 
three-mile offshore jurisdictional boundary in which 
development activities may impact any land or water use or 
natural resource of the state's coastal area. 

Htston- Note: Aitthonn G.S. IliA-lOHh}: I1M-I07: 

113A-124; 

Eff. March I. 1979: 

Amended Ejf. October ]. 1988: 

Amended Eff. November 3. 1997 pursuant to E.O. 121, James B. 

Hunt Jr.. 1997: 

Temporan Amendment Eff. Julx 8^ 1999: December 22. 1998. 

.0403 POLICY STATEMENTS 

(a) The placement and operations of major energy facilities 
in or affecting any land or water use or natural resource of the 
North Carolina coastal area shall be done in a manner that 
allows for protection of the environment and local and regional 
socio-economic goals as set forth in the local land-use pian(s) 
and State guidelines in 15A NCAC 7H and 7M. The placement 
and operation of such facilities shall be consistent with 
established state standards and rules and shall comply with local 
land use plans and with guidelines for land uses in AECs. 

(b) Proposals, plans and permit applications for major energy 
facilities to be located in or affecting any land or water use or 
natural resource of the North Carolina coastal area shall include 
a full disclosure of all costs and benefits associated with the 
project. This disclosure shall be prepared at the earliest feasible 
stage in planning for the project and shall be in the form of an 
impact assessment prepared by the applicant as defined in ISA 
NCAC 7M .0402. If appropriate ensironmenlal documents are 
prepared and rc\icwed under the provisit)ns of the National 
Enxironmental Ptilicv Act (NEPA) or the North Car(ilina 
Environmental Policy Act (NCEPA). this rex lew will satislx the 
definition oi' "impact assessment" ii' al] issues listed m this Rule 
are addressed and these documents are submitted in sufficient 
time to be used to re\'iew stale permit applications lor the project 
or subsequent consistency determinations. 

(c) Local 20\ernmenls shall not unreasonably restrict the 



development of necessary energy facilities; however, they may 
develop siting measures that will minimize impacts to local 
resources and to identify potential sites suitable for energy 
facilities. 

(d) Energy facilities that do not require shorefront access 
shall be sited inland of the shoreline areas. In instances when 
shoreline portions of the coastal zone area are necessary 
locations, shoreline siting shall be acceptable only if it can be 
demonstrated that coastal resources and public trust waters will 
be adequately protected, the public "s right to access and passage 
will not be unreasonably restricted, and all reasonable mitigating 
measures have been taken to minimize impacts to AECs. 

(e) The scenic and visual qualities of coastal areas shall be 
considered and protected as important public resources. Energy 
development shall be sited and designed to provide maximum 
protection of views to and along the ocean, sounds and scenic 
coastal areas, and to minimize the alteration of natural 
landforms. 

(f) All energy facilities in or affecting any land or water use 
or natural resource of the coastal area shall be sited and operated 
so as to be co n s i st ent comply with the following criteria: to the 
maximum extent practicable . 



(1) 



(2) 



(3) 



R i sks of e n vi r o n me nt a l ha r m to fish spaw n ing ar e as, 
i n or affecting the coastal area, s h all be assessed and 
minimized. Adverse impacts on resources of the 
coastal area, including marine and estuarine resources 
and wildlife resources, as defined in G.S. 1 13-129. 
and adverse impacts on land or water uses in the 
coastal area shall be avoided unless site specific 
information denu)nstrates that there will be no adverse 
impacts on land or water uses or natural resources of 
the coastal area. 



(4) 



Risks of environmental harm to coastal resources and 
uses shall be assessed and minimized. Necessary data 
and information required by the state for state permits 
and federal consistency reviews, pursuant to 15 CFR 
part 930, shall completely assess the risks of oil spills, 
evaluate possible trajectories, and enumerate response 
and mitigation measures employing the best available 
technology to be followed in the event of a spill. The 
information must demonstrate that the potential for oil 
spills and ensuing damage to coastal resources has 
been minimized and shall factor environmental 
conditions, currents, winds, and inclement events 
such as northeasters and hurricanes, in trajectory 
scenarios. For facilities requiring an Oil Spill 
Conti n gency Response Plan, this information shall be 
included in such a plan. 

Dredging, spoil disposal and construction of related 
structures that are reasonably likely to affect any land 
or water use or natural resource of the coastal area 
shall be minimized, and any unavoidable actions of 
this sort shall minimize damage to the marine 
environment. 

Damage to or interference with existing or traditional 
uses, such as fishing, navigation and access to public 
trust areas, and areas with hi eh biological or 



46 



NORTH CAROLINA REGISTER 



July I, 1999 



14:1 



TEMPORARY RULES 



(5) 



(6) 



(7) 



(8) 



(9) 



(10) 



recreational value, shall be avoided to the extent that 
such damage or interference is reasonably likely to 
affect any land or water use or natural resource of the 
coastal area. 

Placement of structures in geologically unstable areas, 
such as unstable sediments and active faults, shall be 
avoided to the extent that damage to such structures 
resulting from geological phenomena is reasonably 
likely to affect any land or water use or natural 
resource of the coastal area. 

Wildlife destruc t ion or r e l o c a tio n shall be assessed 
and minim i zed to the ex t ent th at suc h d e struction or 
relocation is reas onably li kel y to affect any land or 
wate r use o r natu r al re so ur c e of t he coastal a r ea. 
Procedures necessary to secure an energy facility in 
the event of severe weather conditions, such as 
extreme wind, currents and waves due to northeasters 
and hurricanes, shall be initiated sufficiently in 
advance of the cominencement of severe weather to 
ensure that adverse impacts on any land or water use 
or natural resource of the coastal area shall be 
avoided. 



Adverse impacts on species identified as threatened or 
endangered on Federal or State lists shall be avoided. 
Major energy facilities are not appropriate uses in 
fragile or historic areas, and other areas containing 
environmental or natural resources of more than local 
significance, such as parks, recreation areas, wildlife 
refuges, and historic sites. 

No energy facilities shall be sited in areas where they 
pose a threat to the integrity of the facility and 
surrounding areas, such as ocean front areas with high 
erosion rates, areas having a history of overwash or 
inlet formation, and areas in the vicinity of existing 
inlets. 

In the siting of energy facilities and related structures, 
the following areas shall be avoided: to the maximum 
e x ten t p r act i cable : 

(A) areas of high biological significance, including 
offshore reefs, rock outcrops and hard bottom 
areas, sea turtle nesting beaches, freshwater 
and saltwater wetlands, primary or secondary 
nursery areas, areas and essential fish 
habitat-habitat areas of particular concern as 
designated by the appropriate fisheries 
management agency, submerged aquatic 



(B) 



(C) 

(D) 

(E) 

(F) 
(G) 

(H) 



H-H 



vegetation beds, shellfish beds, anadromous 

fish spawning and nursery areas, and colonial 

bird nesting colonies; 

major tracts of maritime forest and other 

important natural areas as identified by the 

North Carolina Natural Heritage Program; 

crossings of streams, rivers, and lakes except 

for existing readily-accessible corridors; 

anchorage areas and congested port areas; 

artificial reefs, shipwrecks, and submerged 

archaeological resources; 

dump sites; 

areas of large dunes or well-developed frontal 

dune systems; 

heavily developed and heavily used recreation 

areas. 
Whe r e impacts on these ar e as cannot b e avoided, a n d 
the i m pact affects any land or water use or natural 
resource of the coastal area, damage s h all b e 
mit iga t ed to the maximum extent p r acti c able, and 
affe c ted areas shall be restored to their original 
functions pursuant to a plan of reclamation, which 
must be a part of the consistency determinatio n o r 
peiriiit. 
( 1 1 ) fH2l Construction of energy facilities shall occur only 
during periods of lowest biological vulnerability. 
Nesting and spawning periods shall be avoided. 
( 12) t+3) If facilities located in the coastal area are abandoned, 
habitat of equal value to or greater than that existing 
prior to construction shall be restored as soon as 
practicable following abandonment. For abandoned 
facilities outside the coastal area, habitat in the areas 
shall be restored to its preconstruclion state and 
functions as soon as practicable if the abandonment of 
the structure is reasonably likely to affect any land or 
water use or natural resource of the coastal area. 

Histon- Note: Authority G.S. 1 1 3A-102(h): 11 3A-W7: 

JI3A-124: 

Eft: March 1. 1979; 

Amendi'il Eff. April I. 1992: 

Ami'iuled Eff. Novembers. 1997 pursuant to E.O. 121. James B. 

Hunt J n, 1997: 

Temporary Amendment Eff. July 8^ 1999: December 22. 1998. 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



47 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting of 
March 18. 1999 pursuant to G.S. 150B-21.1 7ia)( I ) and reported to the Joint Legislative Administrative Procedure Oversight 
Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rides have been approved by RRC 
in a form different from that originally noticed in the Register or when no notice was required to be published in the Register. 
The rules published in full text are identified by an * in the listing of approved rules. Statutory Reference: G.S. 15QB-2L17. 

These rules unless otherwise noted, will become effective on the 3Jst legislative day of the 2000 Session of the General Assembly 
or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically disapproves 
the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives an 
iinfiivorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 1 508-21. 3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



4 


NCAC 


03B 


.0101 


4 


NCAC 


03H 


.0102 


15A 


NCAC 


lOF 


.0201 


19A 


NCAC 


02E 


.0221 


19A 


NCAC 


02E 


.0222 


21 


NCAC 


14G 


.0113 


21 


NCAC 


14L 


.0210 


21 


NCAC 


14L 


.0214 


21 


NCAC 


57A 


.0303 



.0103* 



not required, G.S. 150B-21.5(a){4) & 150B-21.12 

not required. G.S. 150B-21.5(a)(4) & 150B-2i.l2 

not required, G.S. 150B-21. 5(a)(3); 150B-21. 5(a)(5) & 150B- 

21.5(b)(1) 

13:10 NCR 811 

13:10 NCR 811 

not required, G.S. i30B-21 .3(a)(3) 

not required, G.S. 130B-2 1.3(a)(3) 

not required, G.S. 150B-2 1.5(a)(3) 

13:03 NCR 318 



TITLE 4 - DEPARTMENT OF COMMERCE 



CHAPTER 3 - BANKING COMMISSION 



(a) Any person or agency desiring to be placed on the mailing 
list for Banking Commission rule-making notices may file a 
request in writing, furnishing their name and mailing address to: 



SUBCHAPTER 38 - RULE-MAKING AND 
CONTESTED CASES 

SECTION .0100 - RULE-MAKING 

.0101 PETITIONS 

(a) Any person wishing to submit a petition requesting the 
adoption, amendment, or repeal of a rule by the Banking 
Commission shall address a petition to: 

The Commissioner of Banks 

P.O. Box 10709 

Raleigh. North Carolina 27603-0709. 

(b) The Commissioner of Banks will determine, based on a 
study of the facts stated in the petition, whether the public 
interest will be served by granting it. He will consider all the 
contents of the submitted petition, plus any additional 
information he deems relevant. 

History Note: Authority G.S. 53-92: 1503-20: 
Eff. Februan 1, 1976: 
Amended Eff. April 1 . 1999. 



.0102 



NOTICE 



The Commissioner of Banks 

P.O. Box 10709 

Raleigh, North Carolina 27603-0709. 

The request must state the subject areas within the authority of 
the Banking Commission for which notice is requested. 

(b) Persons desiring information in addition to that provided 
in a particular rule-making notice may contact: 

The Commissioner of Banks 

P.O. Box 10709 

Raleigh. North Carolina 27603-0709. 

Histoi-\- Note: Authority' G.S. 53-92: I50B-20: 

Eff. February I. 1976: 

Amended Eff. April L 1999: August 1, 1988. 

.0103 HEARINGS 

(a) Unless otherwise stated in a particular rule-making notice, 
hearings before the Banking Commission shall be held in 
Raleigh, North Carolina, at regular scheduled or special called 
meetings of the Banking Commission. 

(b) Any person desiring to present oral data, views, or 
arguments on the proposed rule must, before the hearing, file a 
notice with: 



48 



NORTH CAROLINA REGISTER 



July L 1999 



14:1 



APPROVED RULES 



The Commissioner of Banks 

P.O.Box 10709 

Raleigh, North CaroUna 27605-0709. 

Any person permitted to make an oral presentation shall submit 
a written copy of the presentation [o the above-named person 
prior to or at the hearing. 

(c) A request to make an oral presentation must contain a 
brief summary of the individuals views with respect thereto, and 
a statement of the length of time the individual wants to speak. 
Presentations may not exceed 15 minutes unless, upon request, 
either before or at the hearing, the Commissioner of Banks or the 
presiding officer should determine that fundamental fairness and 
procedural due process require an extension of time. 

(d) Upon receipt of a request to make an oral presentation the 
Commissioner of Banks shall acknowledge receipt of the 
request, and inform the person requesting of the imposition of 
any limitations deemed necessary to the end of a full and 
effective public hearing on the proposed rule. 

(e) Upon receipt of such written comments prompt 
acknowledgment shall be inade including a statement that the 
comments therein shall be considered fully by the Banking 
Commission. 

(f) The presiding officer at the hearing shall have complete 
control of the proceedings, including: extensions of any time 
requirements, recognition of speakers, time allotments for 
presentations, direction of the How of the discussion, and the 
management of the hearing. The presiding officer, at all times, 
shall take care that each person participating in the hearing is 
given a fair opportunity to present views, data, and comments. 



for acquisition by a regional bank holding company in North 
Carolina under the North Carolina Regional Reciprocal Banking 
Act shall be tendered upon application. 

(d) Notice of tiling/written comments. Within 30 days of 
acceptance of a completed application for filing, the 
Commissioner of Banks shall publish a notice of the filing of the 
application as set forth in G.S. 53-21 1(d). Within 14daysofthe 
published notice, any interested person may submit written 
comments and information concerning the application to the 
Commissioner of Banks. All written comments received during 
the comment period shall become a part of the official record 
compiled with respect to the application. The Commissioner of 
Banks may extend the comment period if on the basis of 
information already available, or upon the nature or volume of 
initial public comment, he determines that the public need or the 
intent of the statute is best served by an extension of such 
comment period. 

(e) Examination by Commissioner. Upon receipt of a 
completed application, the Commissioner of Banks shall conduct 
an examination into all the facts connected with the proposed 
acquisition in accordance with Articles 17 and 18 of Chapter 53. 

(f) Action by Commissioner. No final decision may be made 
by the Commissioner of Banks until the comment period has 
expired. The final decision of the Commissioner of Banks on an 
application shall be in writing and include findings of fact and 
conclusions of law. 

(g) Notification of Commissioner's action. TTie applicant and 
all persons who have made written requests for such notice shall 
be given notice of the Commissioner of Banks" final decision on 
each application. 



HIston- Note: Authoritx G.S. 53-92: I50B-2I.2 

Eff. Febrmiiy I. 1976: 

Amended Eff. April L. 1999: Aui^iLst I. 1988. 



History Note: Autlioritx G.S. 53-211: 53-214(b): 
Eff. May 1. 1992: 
Amended Eff. April L 1999. 



SUBCHAPTER 3H - APPLICATIONS BY 
REGIONAL BANK HOLDING COMPANIES 

SECTION ,0100 - REGIONAL BANK HOLDING 
COMPANIES 

.0102 REGIONAL BANK HOLDING COMPANY 
ACQUISITIONS 

(a) Regional bank holding companies may acquire North 
Carolina banks or bank holding companies upon written 
approval of the Commissioner of Banks. 

(b) Application. An application to acquire a North Carolina 
bank or bank holding company must be submitted in writing on 
Form 60 which may be obtained from the Commissioner of 
Banks. The application, must be filed with: 

The Commissioner of Banks 

P.O.Box 10709 

Raleigh, N.C. 27605-0709 

(c) Application fees. The application tees required by statute 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0200 - SAFETY EQUIPMENT AND 
ACCIDENT REPORTS 

.0201 SAFETY EQUIPMENT 

(a) Federal Regulations Adopted. As its regulations 
governing required equipment of vessels as defined in G.S. 
75A-2(5). pursuant to G.S. 75A-6, the Wildlife Resources 
Commission adopts the following federal regulations, to be 
applicable to vessels operated on all waters of this state as 
defined by G.S, 75A-2(6): Code of Federal Regulations. Title 
46, Part 25, and Title 33. Part 175, as supplemented by the 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



49 



APPROVED RULES 



Federal Register. To the extent that the vessel equipment 
requirements of G.S. 75A-6 conflict with these federal 
regulations, they are hereby modified to conform to the federal 
regulations as authorized by G.S. 75A-6(m). 

(b) Vessels of 10 Horsepower or Less. On waters of this 
State not subject to the jurisdiction of the United States, vessels 
propelled by machinery of 10 horsepower or less, in lieu of the 
foregoing requirements, may carry from one-half hour after 
sunset to one-half hour before sunrise a white light in the stem 
or have on board a hand flashlight in good working condition 
which shall be ready at hand and shall be temporarily displayed 
in sufficient time to prevent collision. On waters of this State 
that are subject to the jurisdiction of the United States, this 
exception, though permissible under state law, is not sanctioned 
by any federal law or regulation. 

History Note: Autliorit}- G.S. 75A-3: 75A-6: 113-307: 

Ejf. February J. 1976: 

Amended Ejf. April I. 1999: Aimist I. 1988: May I. 1976. 



TITLE 19A - DEPARTMENT OF TRANSPORTATION 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCH.\PTER 2E - MISCELLANEOUS 
OPERATIONS 

SECTION .0200 - OUTDOOR ADVERTISING 

.0221 FEES 

(a) The fees for participation in the Logo program are as 
follows; 

( 1 ) Mainline and Ramp Construction Payback Fee 
consists of three options as listed in Parts (A), (B) and 
(C) in this Subparagraph: 

(A) Option A is a one-year contract fee of two 
hundred twenty five dollars ($225.00) per each 
mainline and ramp sign. Contracts shall be 
renewed annually every November I. 

(B) Option B is a 10-year contract fee of two 
thousand two hundred fifty dollars ($2,250.00) 
per each mainline and ramp sign. Contracts 
shall be renewed by decade every November I . 

(C) Option C is a lifetime contract fee of the design 
and complete installation cost for all required 
mainline, ramp, trailblazer and supplemental 
service panels. The participating business shall 
be subject to a credit to be determined by the 
Department at the time the Department 
receives any fee from a business which later 
qualifies and elects to participate in the 
program im the subject panel. Businesses 
participating in the program under Paragraph 
(c) of this Rule shall not have lifetime rights. 

(2) Trailblazer Fee is a one-time charge of two hundred 



fifty dollars ($250.00) per each trailblazer business 
sign. 

(3) Maintenance Fee is an annual fee of seventy five 
dollars ($75.00) per each mainline, per each ramp, 
and per each trailblazer business sign. 

(4) Prorated Fee is a prorated portion of the construction 
payback fee. This fee shall be charged for that period 
of time between placement and acceptance of the 
business sign by the Department and the following 
November 1 . This construction payback prorated fee 
shall be charged on the first November 1 of the 
contract. This applies for both one-year and 10-year 
contracts, but not for lifetime contracts as stated in 
Subparagraph (a)( 1 ) Option C of this Rule. 

(5) Service Charge Fee of sixty dollars ($60.00) per each 
business sign shall be charged when a business 
requests replacement of their business sign, or when 
the Department requires replacement due to damages 
to the business sign caused by acts of vandalism, 
accidents, or natural causes including natural 
deterioration. The business shall provide a new or 
renovated business sign with the service charge fee 
per each business sign to the Department. If the 
Department removes or masks a business sign 
because of seasonal operation, there shall be no 
additional charge to the business. 

(6) Supplemental Service Signs shall not be subject to 
fees except as stated in Subparagraph (a)( 1 ) Option C 
of this Rule. 

(b) Fees may be paid by check, cash or money order and are 
due in advance of the period of service covered by said fee. 
Failure to pay a charge when due is ground for removal of the 
business signs and termination of the contract. All participating 
businesses shall be allowed to change contract options only at 
the renewal date. 

(c) Any business located more than three miles from a fully 
controlled access highway participating under Subparagraph 
(a)( 1 ) Option C of this Rule shall be allowed a reimbursement 
if dislocated by another qualifying participating business. TTiis 
reimbursement amount shall be determined by the Department, 
based on life-cycle costs of the logo signs and in-service time 
the business logo was displayed. 

Histor}- Note: Autliorit}- G.S. 136-89.56: 136-137: 136-139: 

143B-346: 143B-348: 143B-350(f): 23 C.F.R. 750. Subpart A: 

23 U.S.C. 131(f): 

Eff. April 1. 1982: 

Amended Eff. Julx 7, 2000: AngiLst 1. 1998: April 1. 1994: 

October I. 1993: December I. 1992: September 1. 1990. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 14 - BOARD OF COSMETIC 



50 



NORTH CAROLINA REGISTER 



July 1, 1999 



14:1 



APPROVED RULES 



ART EXAMINERS 

SUBCHAPTER 14G - REQUIREMENTS FOR THE 

ESTABLISHMENT OF COSMETIC 

ART SCHOOLS 

SECTION .0100 - PERMANENT FILES 

.0113 TEACHER/STUDENT RATIO 

(a) All cosmetic art schools shall provide one teacher for 
every 20 students, or a fraction thereof, present. 

(b) This ratio shall be adhered to at all time schools are in 
operation. Refer to 21 NCAC 14G .01 15. 

(c) Each teaching cosmetology faculty member shall not be 
responsible for more than 20 students in the same time period. 

Hisioi-\ Note: Authority G.S. 88B-4; 

Eff. Fehnian- 1. 1976: 

Amended Eff. April /, 1999: August 1. 1998; April 1. 1991: 

Januan' 1. 1989: Max 1. 1988. 



trainees. 
(b) A cosmetic art school may not count a teacher trainee as 
a cosmetic art teacher in computing the allowable 
student-teacher ratio set by 21 NCAC 14G .01 13. Teachers 
included in the ratio determined under 2 1 NCAC 1 4G .0 1 1 3 may 
be included in computing the ratio required by this Rule. 

History Note: Authority- G.S. 88B-4: 

Eft: Fehruaiy 1. 1976: 

Amended Eff. April 1. 1999: June I. 1991: August 1. 1989. 

.0214 FEE 

An applicant for a cosmetic art teachers license shall pay the 
fees as set by G.S. 88B-20(a) and (b) and (c) if applicable. The 
Board shall not issue a license until these fees are paid. 

History Note: Authority G.S. 88B-4: 888-20: 

Eff. Februan 1, 1976: 

Amended Eff. April L /999,- August 1. 1998: April /, 1991; 

August 1. 1989: May I. 1988. 



SUBCHAPTER 14L - COSMETIC ART 
TEACHERS 

SECTION .0200 - TEACHER PROGRAM 
AND CURRICULUM 

.0210 EFFECT ON STUDENT-TEACHER RATIO 

(a) A student who is either a cosmetology or manicurist 
teacher trainee need not be counted as a student in computing the 
allowable student-teacher ratio set by 21 NCAC 14G .0113. 
However, a cosmetic art school must have at least: 



(1) 



(2) 



One cosmetology teacher for every five cosmetology 
teacher trainees, or cosmetologist and manicurist 
teacher trainees combined; or 
For manicurist teacher trainees only, one cosmetology 
or manicurist teacher for every five manicurist teacher 



CHAPTER 57 - REAL ESTATE APPRAISAL 
BOARD 

SUBCHAPTER 57A - LICENSING CERTIFICATION 
AND PRACTICE 

SECTION .0300 - APPRAISER 
EXAMINATIONS 

.0305 CONFIDENTIALITY OF EXAMINATIONS 

History Note: Authority G.S. 93E-l-6{c); 93E-1-10: 
Eff. July 1. 1994: 
Repealed Eff. April f 1999. 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



51 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. July 15. 1999. 10:00 



a.m. . at 1 307 Glenwood Ave.. Assembly Room, Raleigh. NC. Anyone wishing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Monday. 
July 12. 1999. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 9 1 9- 
7.33-272 1 . Anyone wishing to address the Commission should notify the RRC staff and the agency at least 24 hours prior 
to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood. Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

Da\id Twiddy 



Appointed by House 

Paul Powell. Chairman 

Anita White. 2"*^ Vice Chairman 

Mark Garside 

Steve Rader 

Georae Robinson 



RULES REVIEW COMMISSION MEETING DATES 



July 15. 1999 
August 19. 1999 
September 16. 1999 



October 21. 1999 
November 18. 1999 
December 16. 1999 



LOG OF FILINGS 
RULES SUBMITTED: MAY 20. 1999 THROUGH JUNE 20. 1999 



AGENCY/DIVISION RilLE NAME 

AGRICULTURE, DEPARTMENT OF 

Standards of Identity for Frozen Yogurt 

Admission Regulations 

Admission Regulations 

Purpose 

Definitions 

Eligibility 

Use of Grants 

Availability and Amount of Grants 

DHHS 

Single Audits of Local Governments 

Audits of Hospitals 

Purchase of Service vs Financial Assist. 

DHHS/COMMISSION FOR THE BLIND 

Civil Action 
DHHS 

Benefit Levels 

DENR/MARINE FISHERIES COMMISSION 

License/Permit Denial 

Contested Case Hearing Procedures 

DENR/COASTAL RESOURCES COMMISSION 

Use Standards 
Specific Conditions 
Purpose 



RULE 


ACTION 


2NCAC9K.0214 


Amend 


2NCAC20B .0104 


Amend 


2 NCAC 43L .0309 


Amend 


2NCAC54 .0101 


Adopt 


2 NCAC 54 .0102 


Adopt 


2 NCAC 54 .0103 


Adopt 


2 NCAC 54 .0104 


Adopt 


2 NCAC 54 .0105 


Adopt 


10 NCAC IB .0418 


Amend 


10 NCAC IB .0419 


Amend 


10 NCAC IB .0420 


Amend 


10 NCAC 19G.0823 


Amend 


10 NCAC 29C .0103 


Amend 


15 NCAC 3P .0101 


Amend 


15 NCAC 3P .0102 


Amend 


15 NCAC 7H .0309 


Amend 


1 5 NCAC 7H. 1805 


Amend 


15 NCAC 7H .2101 


Amend 



52 



NORTH CAROLINA REGISTER 



July L 1999 



14:1 



RULES REVIEW COMMISSION 



Approval Procedures 
Specific Conditions 

EDUCATION, STATE BOARD OF 

Purchasing Flexibility Exemption 

Nature of Licensure 

State Board of Education Action 

Application for Approval; Criteria 

State Board Review Stds/Appr. Actions 

Consortium-Based Prog/Innovative Prog 

Prospective Teacher Scholarship Loans 

General Information 

Credit 

Program Requirements for Licensure 

License Patterns 

Licenses for Non-Teacher Ed Graduates 

License Endorsement 

License Renewal 

Expired Licenses 

Reciprocity in Licensure 

Temporary Permit 

License Suspension and Revocation 

Criminal History Checks 

General Provisions 

Graduation Requirements 

Disposition of Old Textbooks 

Testing Requirements and Opportunities 

Test Administration 

Accountability Coordinator 

End-of-Course Tests 

Interscholastic Athletics 

Driver Training 

Accreditation Procedures 

Due Process Protections 

Suspension/Powers/Duties/School Bds 

General Knowledge Test/Licensed Staff 

Charter School Advisory Committee 

Definitions 

Complaint Procedures/Federal Programs 

Admin, of Special Education Programs 

Non-Instructional Special Ed Services 

Special Ed Assessment/Placement Proc 

Surrogate Parents/Child/Special Needs 

Confidentiality:Access/Special Ed Record 

Special Education Due Process Procedures 



TRANSPORTATION, DEPARTMENT OF/DIVISION OF MOTOR VEHICLES 

Branch Offices 

General Provisions 

Office 

Courses of Instruction 

Vehicle Equipment 

Registration: Insurance: Inspection 

Requirements 

Requirements 

Bonds 



15NCAC7H.2I02 


Amend 


15NCAC7H.2105 


Amend 


16NCAC6B.0108 


Adopt 


16NCAC6C.0102 


Amend 


16NCAC6C.0103 


Amend 


16NCAC6C.0202 


Amend 


16NCAC6C.0205 


Amend 


I6NCAC6C.0206 


Amend 


I6NCAC6C.0207 


Amend 


I6NCAC6C.0301 


Amend 


16NCAC6C.0302 


Amend 


16NCAC6C.0303 


Amend 


I6NCAC6C.0304 


Amend 


16NCAC6C.0305 


Amend 


16NCAC6C.0306 


Amend 


16NCAC6C.0307 


Amend 


16NCAC6C.0308 


Amend 


16NCAC6C.0309 


Amend 


16NCAC6C.031I 


Amend 


16NCAC6C.0312 


Amend 


16NCAC6C.0313 


Amend 


16NCAC6C.0501 


Amend 


16NCAC6D.0103 


Amend 


16NCAC6D.0210 


Amend 


16NCAC6D.0301 


Amend 


16NCAC6D.0302 


Amend 


16NCAC6D.0303 


Amend 


16NCAC6D.0305 


Amend 


16NCAC6E.0202 


Amend 


16NCAC6E.0301 


Amend 


I6NCAC6G.0202 


Repeal 


i6NCAC6G.0308 


Amend 


I6NCAC6G.0309 


Amend 


16NCAC6G.03I1 


Adopt 


16NCAC6G.0502 


Adopt 


16NCAC6H.0I01 


Amend 


16NCAC6H.0I03 


Amend 


16NCAC6H.0I05 


Amend 


16NCAC6H.0106 


Amend 


16NCAC6H.0I07 


Amend 


16NCAC6H.0I08 


Amend 


16NCAC6H.0I09 


Amend 


16NCAC6H.0110 


Amend 


iR VEHICLES 




19NCAC31.0207 


Amend 


19NCAC3I.0301 


Amend 


19NCAC3I.0302 


Amend 


19NCAC3I.()307 


Amend 


19NCAC3I.0401 


Amend 


19NCAC3I.0402 


Amend 


19NCAC31 .0501 


Amend 


19NCAC3I.0601 


Amend 


19NCAC3I.0701 


Amend 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



53 



RULES REVIEW COMMISSION 



Probationary Period 



19NCAC3I.0804 



STATE BOARDS/COSMETIC ART EXAMINERS, STATE BOARD OF 

Cleanliness of Clinic Area 2 1 NC AC 1 4H .0 1 

Systems of Grading Beauty Establishment 2 1 NC AC 1 4H .0 1 



Adopt 



Amend 
Amend 



RULES REVIEW COMMISSION 

June 17. 1999 
MINUTES 

The Rules Review Commission met on June 1 7, 1 999, in the Assembly Room of the Methodist Building. 1 307 Glenwood Avenue. 
Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell. Teresa Smallwood. Steven P. Rader. Jim 
Funderburk. John Arrowood. David R. Twiddy. R. Palmer Sugg, and George S. Robinson. 

Staff members present were: Joseph J. DeLuca. Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster. 

The following people attended: 



Robin Pendergraft 
Lisa Thompson 
Scott Perry 
Frank Crawley 
Dedra .Alston 
Julie Lohman 
Ted Sauls 
Dee Williams 
Jessica Gill 
Doug Haggetl 
Cathy Britlingham 



Justice 

Justice/Criminal Justice Standards 

Justice/Criminal Justice Standards 

Attorney General 

DENR 

Justice/Sheriffs" Standards 

Justice/Sheriffs" Standards 

State Board of Cosmetic Art Examiners 

DENR/Coastal Resources Commission 

DENR 

DENR 



APPROVAL OF MINUTES 

The meeting was called to order at 10:01 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the May 20. 1999 meeting. There being none, the minutes were appro\ed. 

FOLLOW-UP MATTERS 

15A NCAC 7H .2404: DENR/Coastal Resources Commission - The Commission approved the rewritten rule submitted by the 

agency. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously appro\ed with the following exceptions: 

12 NCAC 9A .0103: JUSTICE/Criminal Justice Education & Training Standards Commission - This rule was not originally on the 
commission's log or agenda. However problems in other rules before the Commission led to a discussion on this rule, which covers 
definitions used by the agency of terms in its other rules. The Commission determined that the definition of "high school" is at 
variance with the Commission's certification practices. It appears that the agency actualh issues certification to applicants who are 
not high school graduates within the definition, despite the restrictions in 9B .0 1 07 and .01 13. The Commission also objected to terms 
in other rules that were vague. If the agency chooses to add definitions for those terms in this rule, that would satisfy the 
Commission's objections to the other rules. If they choose to submit amendments or additions to 9A .0103. the Commission has 
indicated that it will restrict its review to the amendments or additions and will not re\iew the entire rule. 

1 2 NCAC 9B .0 1 07 and .0 113: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission extended 
the period of review on these rules in order to clarify the agency's actual standards before taking any further action on these rules. 



54 



NORTH CAROLINA REGISTER 



July }, 1999 



14:1 



RULES REVIEW COMMISSION 



12 NCAC 9B .0201 : JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. In (b) it is unclear who or what makes a "qualified assistant" (line 15). 

12 NCAC 9B .0202: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to lack of statutory authority and ambiguity. In (b)( 1 ) there is a provision for the division director to grant a waiver of the 
minimum hours requirement. The standard for granting the waiver is vague. There is no authority to allow a rule waiver unless there 
are "specific guidelines" setout for the agency to follow in making the waiver determination. G.S. 1 SOB- 19(6). In (a)(2), (b)(5). and 
(d)(l ) it is unclear who or what constitutes "qualified" instructors. In (a)(8) it is unclear what the standards are for commission 
"approved" procedures. In (b)(6)(A) and (c)(3)(A) it is unclear what constitutes a "comprehensive" course schedule. In (b)(9) and 
(d)(3) it is unclear who are "authorized" representatives of the commission. 

12 NCAC 9B .0203: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to lack of statutory authority and ambiguity. It is unclear what constitutes "exceptional or emergency circumstances" for 
obtaining the waiver in (e) (lines 32-34). There is no authority to allow a waiver unless there are specific guidelines set out for the 
agency to follow in making the waiver determination. 

12 NCAC 9B .0204: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to lack of statutory authority and ambiguity. It is unclear what constitutes "exceptional or emergency circumstances" for 
obtaining the waiver in (b). TTiere is no authority to allow a waiver unless there are specific guidelines set out for the agency to follow 
in making the waiver determination. 

12 NCAC 9B .0205: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. In (c) and (d) it is unclear what rule the school must follow in the event that there is any discrepancy between 
the contents of the rule and the BLET manuals incorporated by reference. The agency is free to require use of the manuals without 
incorporating them by reference. 

1 2 NCAC 9B .0206: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. The same analysis as used in the previous rule applies to (c) in this rule. TTie cun'iculum in this case is found 
in the "Basic Correction Officer Training Manual." 

12 NCAC 9B .0226: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. The same analysis as applied in 9B .0205 and .0206 applies in this rule. The reference is in (e) to the 
"Specialized Firearms Instructor Training Manual." 

12 NCAC 9B .0227: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. The same analysis as applied in 9B .0205, .0206, and .0226 applies in this rule. The reference is in (e). 

12 NCAC 9B .0228: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. The same analysis as applied in 9B .0205, .0206, .0226, and .0227 applies in this rule. The reference is in (c) 
to the "Wildlife Basic Training Manual." 

12 NCAC 9B .0232: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. The same analysis as applied in 9B .0205, .0206, .0226, .0227, and .0228 applies to this rule. The reference 
is in (e). 

1 2 NCAC 9B .0233: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. As in the previous six rules there is an incorporation by reference problem, this time in (e). 

12 NCAC 9B .0305: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to ambiguity. It is not clear when all types of specialized instructor certifications expire. Based on the Commission" s reading 
of rule .0304 some specialized certifications may be granted to persons who do not hold general certification. |See 9B .0304(d), (e), 
(f), and (g).] If that is so, then it is not clear how it could be set to expire with the general certification as set out in (b) and (c). 

12 NCAC 9C .021 1 : JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to lack of necessity. It is no longer necessary to list forms and their content (unless the content has not been previously 
required in other rules). 



14:1 NORTH CAROLINA REGISTER July 1, 1999 55 



RULES REVIEW COMMISSION 



12 NCAC 9C .0212: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to lack of necessity. It is no longer necessary to list forms and their content (unless the content has not been previously 
required in other rules). 

12 NCAC 9C .0213: JUSTICE/Criminal Justice Education & Training Standards Commission - The Commission objected to this 
rule due to lack of necessity. It is no longer necessary to list an agency's forms. 

12 NCAC lOB .0103: JUSTICE/Sheriffs' Education & Training Standards - The Commission objected to this rule due to lack of 
necessity. It does not appear that it would be within the intent of the General Assembly to deny certification to persons who 
completed high school in North Carolina but who would not be high school graduates within the meaning of .0103(6). 

12 NCAC I OB .0502: JUSTICE/Sheriffs" Education & Training Standards - The Commission objected to this rule due to ambiguity. 
This rule has the same problem with incorporation by reference ambiguity as the previous set from the Criminal Justice Education 
& Training Standards Commission. In (c) the rule incorporates by reference the Justice Academy's BLET Manual including any 
subsequent changes. It is unclear what happens if and when the manual and this rule's course requirements are not in agreement. 

12 NCAC lOB .0601 : JUSTICE/Sheriffs' Education & Training Standards - The Commission objected to this rule due to ambiguity. 
Another incorporation by reference problem. The same analysis as used in the previous rule applies to (d) in this rule. The 
curriculum is the "Detention Officer Certification Training Manual." 

16 NCAC Rules: The agency requested that consideration of these rules be postponed until the July meeting. The Commission 
agreed to do this. These rules will appear in the July log and notebook. 

21 NCAC 141 .0104: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. There is no authority for the Board to require schools to make reports. This objection applies to existing language in the 
rule. 

21 NCAC 141 .()107: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. There is no authority for the Board to refuse to allow a student to take an examination solely because a school has failed 
to make a report. In addition, there is no authority cited to require schools to make reports. This objection applies to existing 
language in the rule. 

21 NCAC 14J .0208: State Board of Cosmetic Art Examiners - TTie Commission objected to this rule due to ambiguity. In (a), it is 
not clear what standards the Board will use in approving an internship program. 

21 NCAC 14J .0501: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority, ambiguity, and lack of necessity. In (a), it is not clear what standards the Board will use in approving credit for instruction 
taken in another state if the provisions in this rule are not met. This amounts to a waiver provision with no guidelines. Paragraph 
(d) is not consistent with G.S. 88B- 1 3, and if it were, it would not be necessary. This objection applies to existing language in the 
rule. 

2 1 NCAC 14L .0101 : State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of necessity. This 
rule merely repeats the information in G.S. 88B-1 1 and is therefore not necessary. This objection applies to existing language in the 
rule. 

21 NCAC I4L .0303: State Board of Cosmetic Art Examiners - This rule was withdrawn by the agency. 

21 NCAC 14N .01 13: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. There is no authority for paragraphs (c) or (d) of this rule. G.S. 88B-18(d) only allows the Board to set additional 
requirements for the cosmetologist license. The statute clearly differentiates between the various types of licenses as necessary and 
only the one license may require additional training. Paragraph (d) is particularly bad by shortening the number of times of failure 
to two. This objection applies to existing language in the rule. 

21 NCAC 140 .0101: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. G.S. 88B-4(a)(9) authorizes the Board to adopt rules for the sanitary management and physical requirements of cosmetic 
art schools, but this rule goes beyimd that. 



56 NORTH CAROLINA REGISTER Julv 1, 1999 M.I 



RVLES REVIEW COMMISSION 



21 NCAC 140 .0104: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. As written, this rule is overly broad. There is no authority for the Board to prohibit someone from performing services 
for which they may be legally authorized to perform. 

21 NCAC 140 .0105: State Board of Cosmetic Art Examiners - This rule was withdrawn by the agency. 

21 NCAC 14P .0105: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. While G.S. 88B does establish procedures for licensing teachers, at no place does it prohibit teaching without a license 
or with an expired license. There is therefore no authority to penalize someone for doing it as this rule does in (3). 

21 NCAC 14P .0111: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (2), it is not clear when a licensed teacher is required to be on duty in order to avoid this penalty. There 
is no authority to require schools to report a change in the teaching staff even though the Board has an existing rule requiring it 
adopted pursuant to previous authority now repealed. Pursuant to G.S. 88B-4(a), their authority related to schools is to approve new 
schools, adopt rules for the sanitary management and physical requirements, and establish a curriculum. Therefore there is no 
authority for the provision in (4) penalizing a school for failing to report a change in teaching staff. 

21 NCAC 14P .0112: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. Because there is no authority to prescribe what students wear, there is no authority to penalize a school for failing to enforce 
a dress code as the rule does in (6). 

21 NCAC 14P .01 13: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority. TTiere is no authority for the penalties set in (2) and (3). There is no statutory requirement for the reports or authority for 
the Board to require them by rule. 

21 NCAC 14P .01 14: Stale Board of Cosmetic Art Examiners - The Commission objected to this rule due to ambiguity. In (2) and 
(3), it is not clear if these are penalties against students or schools. 

21 NCAC 14P .01 16: State Board of Cosmetic Art Examiners - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (b), it is not clear what is meant by "good cause" for extending the period for a licensee to make a 
correction that led to a warning citation. This amounts to a waiver or modification provision without specific guidelines. 

21 NCAC 16M .0101: State Board of Dental Examiners - The Commission objected to this rule due to lack of statutory authority 
and ambiguity. In (b), there is no authority to charge instructors the annual impaired dentist fee allowed to be charged dentists by 
G.S. 90-39(9). In (c), it is not clear what the amount of the instructor's license renewal fee is. Tliere is no authority to set fees outside 
rulemaking. 

21 NCAC 18B .0208: State Board of Examiners of Electrical Contractors - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. The provision in ( b) allowing minor irregularities of information in specially arranged examination 
applications to be waived at the discretion of the Board's application re\iew committee is a waiver provision without specific 
guidelines prohibited by G.S. 150B-19(6). In (c), (d), and (e). it is not clear what is meant by "within reasonably limits" and "special 
provisions." In (c)(3), it is not clear when the Board will grant prior approval. This objection applies to existing language in the rule. 

COMMISSION PROCEDURES AND OTHER MATTERS 

Mr. DeLuca reported that Denise Stanford had informed him that she is completing the complaint against the Rules Review 
Commission. The commissioners should anticipate being served by certified mail in the near future. There is possibly money 
available from the contingency fund if this should occur. 

The next meeting will be on July 15. 1999. 

The meeting adjourned at 1 1 :29 a.m. 

Respectfully submitted, 
Sandy Webster 



14:1 NORTH CAROLINA REGISTER July 1, 1999 57 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings, (91 9) 733-2698. Also, the Contested Case Decisions are available on the Internet at the following 
address: http://www. state. nc. us/OAH/hearings/decision/caseinde.x. htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Beryl E. Wade 



AGENCY 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission \ Keyland. Inc . T/A Cloud 9 

CRIME CONTROL AND Pl'BLIC SAFETY 

Anson D Loonev \ . Cnme Victims Compensation Commission 

HEALTH AND HUMAN SERVICES 

Andrew Gainey v. Office of the Chief Medical Examiner 

J. P. Lynch v. Department of Health & Human Ser\ices 

New Hope Living Centers. Enc D. Lewis v. Health & Human Services 

Lonnie Hemng v Department of Health & Human Services 



CASE 




NUMBER 


AL.I 


98 ABC 1099 


Overhy 


99 CPS 0096 


Momson 


9K DHR 1761 


Owens 


99DHR01I1 


Reillv 


99 DHR 0170 


Owens 


99DHR0.1.S0 


Reilly 



DATE OF 
DECISION 



01/17/99 



05/25/99 



05/12/99 
05/25/99 
05/25/99 
06/0.V99 



PUBLISHED DECISION 
REGISTER CITATION 



14 01 NCR 69 



Division of Social .Senices 



Child Supparl Eiifiirceiiifin Secliun 
Robert M. Chandler Jr. v. Department of Health & Human Ser\ ices 98 CSE 1789 Phipps 

Elizabeth F West v Department of Health & Human Services 99 CSE 0451 Momson 



JUSTICE 

Alarm Systems Licensing Board 

Terry Allen Bnckey v Alarm Systems Licensing Board 
Brian Anthony Barlimac v. Alarm Systems Licensing Board 
Melvin T- Lohr \ Alarm Systems Licensing Board 

Education and Training Standards Division 

Rock Ste\ en Edwards v Cnminal Justice Ed & Training Stds Comm 
Anthony Scott Hughes v Shenffs' Ed & Training Standards Comm 

Private Protective Sen-ices Board 

Michael Lynn Arter v. Pnvate Protective Services Board 
Jeffrey S, Moore v Pnvate Protective Services Board 
Bonnie Mane Keller v. Pnvate Protective Services Board 
Ronald E Sulloway v. Pnvate Protective Services Board 
Raymond Solomon v Pnvate Protective Senices Board 
Charles E. Evans. Jr. v. Private Protective Services Board 



0.5/27/99 
0.5/2.V99 



99 DOJ 0097 


Wade 


0.5/21/99 


99 DOJ 0487 


Momson 


05/25/99 


99 DOJ 0490 


Momson 


05/24/99 


98 DOJ 0906 


Chess 


0.5/13/99 


98 DOJ 1.5.^0 


Chess 


0.5/12/99 


99 DOJ 0262 


Wade 


05/25/99 


99 DOJ 0488 


Momson 


05/24/99 


99 DOJ 049 1 


Momson 


05/24/99 


99 DOJ 049.1 


Momson 


05/24/99 


99 DOJ 0494 


Momson 


0.5/2.5/99 


99 DOJ 0496 


Momson 


0.5/25/99 



58 



NORTH CAROLINA REGISTER 



July /, 1999 



14:1 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



PUBLIC INSTRUCTION 

S.LF. and S.FF. v. Charlotte-Mecklenburg Board of Education 

STATE PERSONNEL 



98EDC 1649 



Mann 



06/04/99 



Department of Correction 

E. Wayne Irvin v. Department of Correction 

Maydean L. Taylor v. Department of Correction 

Ann McMillian v. Morrison Youth institution, Department of Correction 

Harry E- Kenan \ , Capt B.E, Lewis. Polk Youlh Institution 

Richmond Euimore v Depanment of Correction. Wake Correctional 

Jerry D Crawford v. Department of Correction 99 OSP 0577 

Employment Securit}' Commission 

Russell J, Suga v. Employment Secunty Commission 

Johnston County 

Lili Romaine Lee v. County of Johnston 



94 OSP 1791 


Momson 


98 OSP 1272 


Chess 


98 OSP 127.5 


Chess 


99 OSP 02.57 


Phipps 


99 OSP 0416 


Mann 


Reilly 


06/02/99 


96 OSP 1122 


Reilly 


99 OSP 0456 


Momson 



0.5/18/99 
05/14/99 
05/12/99 
06/07/99 
06/04/99 



05/26/99 



06/02/99 



14:01 NCR 60 



14:1 



NORTH CAROLINA REGISTER 



July 1, 1999 



59 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94 0SP1791 



E. WAYNE IRVIN, 
Petitioner, 

V. 

N.C. DEPARTMENT OF CORRECTION. 

Respondent. 



RECOMMENDED DECISION 



The petitioner filed 94 OSP 1791 contesting his suspension and discharge on December 20. 1994. The petitioner filed 93 
OSP 1 1 15 on October 15. 1993. contesting his failure to be promoted. The cases were consolidated on for hearing. The hearing was 
continued by the Administrative Law Judge pending the outcome of Petitioner's EEOC charge. Petitioner subsequently voluntarily 
dismissed 93 OSP 1115. This contested case was heard in Raleigh. N.C. on November 16. 18. 20. 1998, and December 7, 1998. 
in the Office of Administrative Hearings, Fred G. Morrison Jr., Senior Administrative Law Judge, Presiding. 



APPEARANCES 



For the Petitioner: 



Thomas Hilliard. Ill, Esquire 
Hilliard & Jones 
Post Office Box 25305 
Raleigh. North Carolina 2761 1 



For the Respondent: 



Neil Dalton 

Assistant Attorney General 

State Bar #13357 



Joan Erwin 

Assistant Attorney General 

State Bar # 6064 

N.C. Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

FINDINGS OF FACT 



2. 



At the time of his discharge, effective July 29, 1994. the petitioner. Dr. E. Wayne Irvin. was a Dentist II at Respondent's 
North Carolina Department of Correction's [DOC] Central Prison located in Raleigh. N.C. 

During his thirteen ( 13) year career with Respondent. Petitioner was never issued a formal written warning concerning job 
performance or personal conduct. His overall summary rating was "very good" following an April 5. 1994. performance 
review. 



The Dental Clinic at Central Prison measures approximately 21 feet x 17 feet. It has three dental chairs and a small 
administrative area. Usually there arc two full time dentists assigned to the clinic with the other chair for a dental hygienist. 
The partitions separating the sections of the dental clinic do not go all the way to the ceiling. 

In April of 1994. the two full-time dentists were Dr. Jessie Morris, a Dentist III who supervised the clinic, and the petitioner, 
a Dentist II. At this time. 93 OSP 1115 had been filed by the petitioner alleging, in part, that he had not been promoted lo 
the Dentist III position. 

A dental assistant, who assisted chair side, was assigned to each dentist in the clinic. In 1994. there were two dental 
assistants in the clinic. While each assistant would work for each dentist when circumstances so dictated, normally the 
regular dental assistant for Dr. Morris was Carolyn Long, and the regular dental assistant for the petitioner was Karen Bailey 



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(now Karen Avila). 

6. When Ms Bailey assisted the petitioner, he was her clinical supervisor. 

7. The petitioner frequently told Ms Bailey that Dr. Morris was "blind as a bat" and "too old." After Ms Bailey would work 
with Dr. Morris, the petitioner would question her about specific procedures Dr. Morris had used with certain patients. The 
petitioner would make notes of the names of the inmates. 

8. In April of 1994, the dental hygienist in the clinic was Kelly George. Frank Peele was a Processing Assistant III, whose 
work station was in the administrative area of the clinic. Mr. Peele scheduled the inmates to see the dentists and assisted 
in getting inmate medical records including dental records. 

9. On or about April 22, 1994, Bobby Reardon, Administrative Services Manager of Central Prison received a memorandum 
and a telephone call from the Assistant Health Treatment Administrator at Central Prison, Ray Parker. The memorandum 
indicated that Dr. Morris had identified a serious disruption in the dental clinic. Each of the employees in the dental clinic 
had a litany of complaints concerning the petitioner, and the workplace stress he induced in them by his behaviors. 

10. Mr. Parker had interviewed each of the dental clinic employees and obtained written statements. Initially he had spoken 
to Carolyn Long and Kelly George at Dr. Jesse Morris' request. Later, he called Karen Bailey and Frank Peele in to speak 
to him concerning the employee discord reported by Long and George. These statements were forwarded to Mr. Reardon. 
They were not shown to petitioner. 

1 1 . The dental clinic employees were upset about the fact that they felt that the petitioner created a hostile atmosphere in the 
dental clinic. 

12. The complaints included the fact that the petitioner kept notes on things that went on in the clinic. He told other employees 
that Dr. Morris was "too old" and referred to him as "blind as a bat" and "senile" and that the State had not made good 
choices in filling vacant positions. He constantly made statements to the effect that Dr. Morris was incompetent, and made 
cutting remarks about Dr. Morris; he asserted to employees that Frank Peele was "lazy"; that Carolyn Long was 
"unqualified"; and that Kelly George was too friendly with the inmates and officers and that her work was "unsatisfactory." 
About Karen Bailey, his own regular assistant, he remarked to others that she" drank too much" and that "she had had an 
abortion." His negative remarks were so frequent that Carolyn Long observed in her statement that most of what the 
Petitioner had said to her concerned negative remarks about other staff members. 

1 3. The statement of Karen Bailey revealed that the petitioner had instructed her to copy the entire dental record of one of Dr. 
Morris' inmate patients for him, and that he had put the inmate dental record in the folder that he used to take home notes 
on occurrences in the dental chnic. She also wrote that she had seen him copy the 4" x 6" cards that were used to document 
some other of Dr. Morris' patients. 

14. On one occasion, a morning while no one else was present, and in a "hurried gesture," the petitioner handed Karen Bailey 
an inmate dental record and asked her to copy the entire chart for him. She did so and gave him the copy. The record copied 
by the petitioner was of a patient of Dr. Morris which the petitioner was not scheduled to treat and had not treated. Dr. 
Morris had treated the inmate earlier that day and the inmate had left. Dr. Morris had left the clinic. The petitioner did not 
see the inmate. Ms. Bailey thought the petitioner was acting suspiciously so she checked the name of the patient to see 
whose patient he was. The dental record contained the dentist's notes. The petitioner put the dental record into his portfolio 
that he took in and out of the institution. 

15. Tlie petitioner told Ms. Bailey that he was taking notes of what went on in the dental clinic and that he had it on his computer 
at home. 

16. In her five years at the dental clinic at Central Prison, Ms. Bailey had never been asked to copy a dental record before. 

1 7. On another occasion, the petitioner approached Ms. Bailey and asked her to make a copy of another inmate dental record, 
but she refused because she knew it was against policy to copy an inmate dental record. The petitioner made the copy 
himself 



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18. The petitioner testified in his own behalf that he had Karen Bailey copy one dental chart for him, but that he had never asked 
her to copy another, nor had he ever copied a dental chart and taken it home. He further stated he studied the chart in 
question for professional reasons, and threw it away. In his deposition placed in evidence, he had stated under oath that 
Karen Bailey had copied one chart for him and that he personally had copied up to three 4' by 6' cards and taken them home 
for use and then destroyed them. The petitioner told Dr. Ray and Mr. Reardon that he had Karen Bailey copy the file cards 
only. The petitioner's story of what was copied and by whom has changed each time he has given an explanation of his 
conduct. 

19. Carolyn Long became a dental assistant at the dental clinic on March 14, 1994. During the time Ms. Long worked at the 
clinic, she observed the petitioner take inmate dental records down to the nurses" station (where there was a copying 
machine) then come back and put the dental records back in their folder, and put a copy in his portfolio. Ms. Long on one 
occasion actually looked into the petitioner's portfolio while he was at lunch, and saw the dental records. The petitioner took 
his portfolio out of the institution that day. Ms. Long did not observe him taking the copies out of his portfolio. 

20. On several occasions, Ms. Long observed the petitioner go through the dental records of Dr. Morris' patients while Dr. 
Morris was at lunch. 

21. On one occasion, Ms. Long heard the petitioner ask Ms. Bailey to copy dental records for him. 

22. Due to the nature and number of the allegations against the petitioner, Mr. Reardon contacted then Warden of Central 
Prison, Gary Dixon. Mr. Dixon and Mr. Reardon confronted the petitioner with the allegations on April 24, 1994. 

23. During the meeting of April 24, 1994. Warden Dixon went over the allegations made against the Petitioner using the 
statements by staff members. The only allegation denied by Petitioner was telling others that Karen Bailey had an abortion. 

24. Warden Dixon confronted the Petitioner with taking home the dental records of Dr. Morris' patients. The petitioner 
admitted having done so and that he had then disposed of the records. Contemporaneous notes of the interview taken by 
Mr. Reardon document that the petitioner "admits to copying records and taking same out of the institution for his personal 
use, but that he later destroyed them." 

25. Warden Dixon then told the Petitioner that he was going to assign Bobby Reardon to conduct an official investigation of 
the allegations raised by the dental clinic employees. As is customary at Central Prison, the Petitioner was advised by both 
Warden Dixon and Bobby Reardon that he was not to discuss the investigation with other employees. Petitioner was not 
asked to sign a written investigation form since at that time there was no such standard form at that time and "Debnam" 
rights were only given when an investigation of potentially criminal matters was being undertaken. When this in\estigation 
started, in Warden Dixon's opinion, it was not likely to involve criminal matters against the petitioner. 

26. The notes made by Bobby Reardon of the April 24, 1994, meeting with Warden Dixon and the petitioner reflect that the 
petitioner had been advised not to discuss the details of the investigation with other staff 

27. Petitioner denied bt)lh in his deposition and at the hearing that he was advised not to discuss the matter of the investigation 
with other employees. Both Warden Dixon and Bobby Reardon testified unequivocally that he had been so ordered. Their 
testimony is supported as well by the contemporaneous notes of Reardon of the April 24, 1994, meeting detailing the fact 
that this order had been given to the petitioner. The petitioner did state that he could not categorically state verbatim that 
Dixon had not so advised him. It is more likely than not that Dixon told petitioner not to discuss the matter with other staff 
members. 

28. On or before May 25. 1994, Karen Bailey and the petitioner had a short con\'ersation about the dental clinic investigation 
in the oral surgery clinic. Karen Bailey initiated the conversation, but the petitioner. Bailey's supervisor on clinical matters, 
first suggested they meet where they could not be overheard away from the office. The petitioner told Ms. Bailey that they 
needed more privacy and asked her to come to his home, and she agreed. The petitioner asked Ms Bailey to meet him after 
work across from the Farmer's Market, which she did. and then followed him to his house. 

29. After they arrived at the petitioner's home, Ms. Bailey and the petitioner sat on his front porch. The petitioner told Ms. 
Bailey that her statement had been the most detrimental because she had said she had copied the whole dental record for the 
petitioner, and that he had been advised by his lawyer that if he had taken a dental record out of Central Prison that would 

62 NORTH CAROLINA REGISTER July 1, 1999 14:1 



CONTESTED CASE DECISIONS 



be bad for to him. The petitioner told Ms. Bailey that he was going to say that he had copied only the 4" x 6" cards that the 
clinic keeps on each inmate and that Ms. Bailey had copied not dental records, but only the just mentioned file cards that 
contain only short treatment summaries of each inmate. He further informed Ms Bailey that their conversation had "never 
happened," implying that Ms. Bailey should not tell her supervisors that she had met with the petitioner and that they had 
discussed the case. On May 26. 1994, Ms. Bailey informed Mr. Reardon of the meeting with the petitioner and made a 
written statement concerning the meeting. Ms. Bailey's written statement concerning her meeting with the petitioner was 
made a day or two after the front porch conversation. 

30. Ms. Bailey's clear impression was that by telling her that he was going to say that he had copied only the 4" x 6" cards, the 
petitioner was trying to get her to change her truthful statement to an untruthful one. 

31. Dr. Larry Ray, in April of 1994. was the Chief of Dental Services for DOC, and, therefore, had an interest in the events in 
the Central Prison Dental Clinic. He assisted in the interviews of the dental clinic staff during Mr. Reardon's investigation. 

32. As a part of the investigation, and after learning of the inappropriate meeting between Bailey and the petitioner, Mr. 
Reardon and Dr. Ray interviewed the petitioner on June 2, 1994. During this interview, the Petitioner" s description of what 
he had done with the dental records changed. He told Mr. Reardon and Dr. Ray that he had not instructed Ms Bailey to copy 
whole dental charts, but instead, that he had her to copy the file cards short version of inmate dental records that are kept 
in the card file, outside of the inmate dental chart. 

33. During the interview with Mr. Reardon and Dr. Ray, Mr. Reardon asked the petitioner if he recalled that he was not to 
discuss the investigation with anyone involved. The petitioner agreed and stated that he had not discussed the investigation 
with anyone involved. Mr. Reardon then informed the petitioner of his conversation with Karen Bailey concerning the 
petitioner's meeting with her at his house. TTie petitioner appeared shocked to learn that Mr. Reardon knew of his meeting 
with Ms Bailey. The petitioner did not deny having met with Ms. Bailey and stated that the two of them had mutually agreed 
to meet. He refused to answer questions on this issue further. 

34. Contemporaneous notes taken by Dr. Ray at the June 2, 1994. meeting with the petitioner document that the meeting took 
place and were consistent with the testimony of Mr. Reardon and Dr. Ray. Petitioner testified that he did not recall this 
meeting. 

35. Pending the result of the investigation, and after learning of petitioner's conversation with Karen Bailey, in late May, 1994, 
Warden Dixon initiated the reassignment of the Petitioner from Central Prison to Harnett Correctional Institution. 

36. In late June, 1994, Warden Dixon was promoted to the position of Area Administrator and on about July 12, 1994, James 
French became Warden of Central Prison. On July 14. 1994, he wrote the petitioner scheduling a pre-disciplinary 
conference for July 22, 1994. TTie letter cited false and misleading statements about other staff members to harm or destroy 
their reputation, removal and betrayal of confidential inmate records, and hindering an internal investigation by intimidation 
of a fellow employee as reasons for the pre-disciplinary conference. The letter warned that "failure to attend this conference 
will cause a decision to be made concerning your future employment without your input." 

37. The petitioner told the Central Prison authorities on the morning of July 22, 1994 that he could not be present for the July 
22, 1994 pre-disciplinary meeting due to illness. The matter was rescheduled for July 29, 1994, at 9:00 a.m. 

38. The pre-disciplinary conference was held on July 29, 1994. In attendance were the petitioner. Warden French, and Bobby 
Reardon. Warden French read the specific allegations regarding the copying of records, the intimidation of Karen Bailey 
and making negative comments about the other staff. The petitioner was then given a chance to respond to the allegations. 
He refused, stating he denied the allegations but he wanted to consult with his attorney before he responded. He also 
complained to Warden French that former Warden Dixon had stated he would receive the allegations in writing and could 
respond in writing. 

39. During the meeting with Warden French on July 29, 1994. if not before, the plaintiff knew precisely that the allegations 
against him included having Ms. Bailey copy confidential records for him, taking confidential inmate dental records out of 
the prison, and hindering the internal investigation against him by having Ms. Bailey come to his home and staling to her 
that he was going to say he had her copy and that he had taken home only one of the dental cards and not the entire charts, 
thereby implying that she should also claim she had copied and given to him only one dental card. 



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CONTESTED CASE DECISIONS 



40. The petitioner signed a form indicating he had been given his pre-dismissal conference. At the bottom, he wrote a note 
which stated. "Let it be known that I requested and was denied the opportunity to review each allegation and prepare a 
written response, after a reasonable period of time." 

41. After the morning session, when he refused to cooperate with Warden French by discussing the issues with him, the 
petitioner was advised to come back to Central Prison at 2:00 p.m. When the petitioner returned, he was given his letter of 
investigatory suspension for which he acknowledged receipt. He declined to state anything after he had been given and had 
read the letter of suspension. He was also given a letter to which he acknowledged receipt, that explained in detail the 
allegations against him. The letter of suspension clarified that the suspension was for the purpose of formalizing the 
disciplinary decision made. 

42. On August 1 6. 1 994, Warden French sent the petitioner a letter which stated that as a result of the pre-disciplinary /dismissal 
conference in which the misconduct alleged was explained to the petitioner, and due to Petitioner's failure to offer any 
explanations, French recommended his dismissal up the chain of command. Petitioner did not respond to Warden French's 
letter, although the recommendation to dismiss letter contained a specific invitation to do so should he have any questions 
on the matter. 

43. Warden French forwarded his recommendation to dismiss the petitioner up his chain of command which included Gary T. 
Dixon. Dixon concurred in the decision and sent it further up the chain of command. 

44. Warden French gave the petitioner a letter dated September 13, 1994, dismissing him from his employment effective July 
24, 1994. Since the letter was delivered on the 46th day of his suspension, and no extension of the 45 day limit on 
investigatory suspension had occurred, the Department of Correction paid the petitioner for one day's employment. No 
additional pre-dismissal conference was held on September 13, 1994. 

45. The petitioner appealed his dismissal internally to DOC's Employee Relation's Committee. At the Employee Relation's 
Committee hearing. Warden French presented the case for DOC. The case was presented with the documents above, and 
also, Mr. Reardon, Mr. French, Karen Bailey and Carolyn Long gave live testimony similar to what was presented at the 
OAH hearing. In his defense, the petitioner testified before the Employee Relations Committee and stated only that he 
denied the allegations. He presented no other evidence or witnesses. 

46. Theresa Barbour is a former dental hygienist at the Central Prison dental clinic. In 1992, the petitioner asked Ms Barbour 
on three separate occasions to make copies of dental records for him. The dental records he requested to be copied were 
not his patients; they were patients of Dr. Larry Ray, who was then the Dentist III in the clinic with whom the petitioner was 
embroiled in a personality conflict. Since it was an unusual request. Ms Barbour made a contemporaneous note of one of 
the times that the petitioner requested her to copy the records in a journal she was keeping. 

47. The petitioner told Ms. Barbour that he wanted copies of the dental records because they showed that Dr. Ray was under 
stress and also to show inadequacies in treatment by Dr. Ray. Ms. Barbour refused to copy the records because she knew 
the records were confidential, and told the petitioner so. 

48. The petitioner told Ms. Barbour that she should not have any contact with Dr. Ray. The petitioner further told Ms. Barbour 
that the lawsuits were going to start and that she was not to have any contact with the other "side," meaning Dr. Ray. 
Petitioner told Ms. Barbour that if she had contact with the "other side," he would have her job. Ms. Barbour believed the 
petitioner when he told her he could have her job since at that time he spent significant time with one of the senior medical 
administrators. 

49. The petitioner had a vendetta against Dr. Ray stemming from when Dr. Ray (a younger man) was his supervisor in the dental 
clinic. 

50. On another occasion. Ms. Barbour observed the petitioner late one afternoon making copies of inmate dental records. The 
records copied were for Dr. Ray's patients. After making the copies, the petitioner put the copies of dental records in his 
portfolio. The petitioner told Ms. Barbour that it would be easy to get the records out of the prison, because at the East Gate 
of the prison, the officer did not check his portfolio, even though he did check ladies' purses. 

51 . The petitioner's observations on how to take the dental records out of Central Prison without detection show that he knew 
he was not allowed to take dental records out of the prison. 



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52. The petitioner testified in rebuttal, but did not deny any of the allegations made by Theresa Barbour, including his having 
asked her to copy the records, his non-professional reasons for wanting the records, his vendetta against Dr. Ray, his ability 
to take dental records out of Central Prison past the guard at the East Gate without being detected, and the fact that he had 
told Ms. Barbour that he was putting data against Dr. Ray on his computer at home. This behavior in 1992 described by 
Ms. Barbour buttresses the testimony of Carolyn Long (by deposition) and Karen Bailey that Petitioner was engaged in 
copying and taking dental records out the prison in 1994 for personal reasons unrelated to any professional treatment or 
purpose in order to further his vendetta against his current supervisor. Dr. Jesse Morris. 

53. At Central Prison, no one was allowed to take copies of medical records out of the prison without a court order or other 
official document authorizing it. 

54. Dr. James Clare is the Assistant Dental Director for the Department of Correction. He has previously been the Dentist II 
in the dental clinic at Central Prison. He has also been a Dentist at the North Carolina Correctional Institution for Women 
and Harnett Correctional Institution. Dr. Clare testified that dental records are confidential. In sixteen years with the 
Department of Corrections, Dr. Clare has never had an occasion to take inmate dental records home. Dr. Clare testified that 
there is no conceivable reason to take home dental records by the non-treating dentist. 

55. Petitioner identified no reason for former Warden Dixon, Warden French. Bobby Reardon, Carolyn Long, Theresa Barbour, 
Karen Bailey, or Dr. Ray to give false testimony against the petitioner, as he himself acknowledged. The Judge finds their 
testimony on the issue of Petitioner's statements and conduct credible. 

56. Carolyn Longs statement and testimony that Petitioner frequently questioned her about Dr. Morris' patients and that she 
observed Petitioner taking dental records to the nurses" station and come back with copies was credible and not rebutted by 
Petitioner other than by a general denial by him as to the credibility of her statement. 

57. Karen Bailey's testimony that Petitioner requested on two occasions that she copy dental records is credible as is her 
testimony that at some point in May. at his home, he told her that he intended to say that she only copied 4' by 6' dental cards 
for him. 

58. Dentists learn in dental school and in their continuing education that dental records are confidential medical records. Their 
Code of Ethics for dentists, likewise, provides that dental records are confidential. Dental records must remain confidential 
unless the patient waives the confidentiality. Risk management personnel from insurance companies stress the 
confidentiality of dental records from a liability standpoint. 

59. Petitioner as part of his employment obligation, as his WPPR reflects, was to know DOC medical health care policies and 
to teach them to endodontic graduate students who sometimes worked in the dental clinic. DOC medical health care policies 
indicate that dental records are part of the medical records. The inmate dental records at DOC are kept in the medical record 
file which has stamped on the outside in one half inch tall bold black letters the word "Confidential." The DOC Health Care 
Policy provides that "unauthorized release" of patient records is grounds for disciplinary action. The DOC Health Care 
Policy specifically limits access to confidential records to health care providers when they are involved in the treatment of 
the patients. 

60. With all of his training in public and private practice, the petitioner was aware of the fact that dental records were 
confidential medical records. 

61 . Petitioner asserted at the hearing that he took one chart home only on one occasion for a treatment purpose. However, he 
articulated no treatment reason for taking home the inmate dental record that he admitted taking home. 

62. Theresa Barbour's testimony that Petitioner took copies of many dental records from the dental clinic by sneaking them past 
a certain officer, and that Petitioner intended to further his vendetta against Dr. Ray with the records was credible and not 
rebutted by Petitioner. 

63. Carol Hinnant, formerly the Employee Relations Manager for the Personnel Section of the Department of Con-ection 
explained that the DOC disciplinary regulations had an example of inappropriate personnel conduct added in January, 1 995. 
This new example states that it is inappropriate personal behavior to take medical records from a prison facility. However, 
this new example was just that, an example, and did not purport to add a new type of conduct which could be disciplined. 



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CONTESTED CASE DECISIONS 



In 1983 another employee of the Department of Correction was terminated for the same conduct for which the petitioner 
was terminated— taking medical records from the prison facility. 

64. There is a substantial market in Raleigh for contractual dentists. Dr. Clare for example is in contact with agencies who 
market contractual dentists, and frequently, they have no dentists available. Dentists in Raleigh can get work under contract 
in a reasonable amount of time. 

65. Petitioner, by his own admission, has made no effort to seek alternate employment since being terminated from his 
employment at Central Prison, including making application, consulting with fellow dentists, or seeking an employment 
agency. 

66. Betty Jo Adams testified that she typed a statement for Karen Bailey and that she put in everything that Karen Bailey had 
written for her. Ms. Adams stated that she felt that Ms. Bailey was not always honest, but gave as an example only that she 
would ask Ms. Adams not to tell anyone what she had said about another employee. 

67. Betty Jo Adams stated that she never observed the petitioner copying charts, but explained that her work load and placement 
of her desk was such that she would not have noticed such activity by him, even though the copy machine was in the large 
area in which she had a work space. She typed Karen Bailey's statement at Mrs. Carney's desk m another part of the 
building due to the public nature of her work space. 

CONCLUSIONS OF LAW 

1 . At the time of his dismissal, the petitioner was a career Stale employee, therefore he could be dismissed only for just cause. 

2. By copying and/or having another employee copy dental patient records for inmates that were not his patients which he took 
home for non-treatment related purposes, the petitioner violated the confidentiality of dental patient records which is just 
cause for his dismissal. Petitioner was on notice that this type of conduct constitutes inappropriate personal conduct since 
he knew of the health care regulations of the Department of Correction requiring confidentiality of dental records, the ethical 
rules of his profession requiring confidentiality, and the strict adherence to record control within the Department. The covers 
of the medical records state that the material within is confidential. Petitioner, in his comment to his dental assistant in 1 992 
made clear he understood that he ought not take documents from the building. The Department, in the past, has fired at least 
one other person for removing such documents, so it cannot be suggested that this type of misconduct concerning the breach 
of an inmate's right to confidentiality of medical records was ignored or acquiesced in by the Department or was known 
to be a standard operating procedure by its medical staff. 

3. The Petitioner invited Karen Bailey to his home to discuss the pending investigation in violation of the legitimate order not 
to discuss the investigation with other witnesses given to him by both the Warden Dixon of Central Prison and the Head of 
the Medical Department Reardon. By telling Ms. Bailey that he was going to admit to only copying the 4" x 6" index cards, 
the petitioner was trying to hinder an official investigation by influencing Ms. Bailey to state she had copiedonly 4" x 6" 
cards for him, when in fact both the petitioner and Ms. Bailey had copied entire dental charts. This attempt by Irvin to hinder 
the official investigation into his actions was just cause to discipline petitioner. 

4. There were no federal due process issues raised by the manner in which Petitioner's predismissal conference and 
investigatory suspension occurred. Paschal v. Myers , 129 N.C. App. 23, 30-31, 497 S.E.2d 311, 316 ( 1998); Leiphart v. 
School (>f the Arts, 80 N.C. App. 339, 349. 342 S.E.2d 914. 922. cert, denied . 318 N.C. 507. .349 S.E.2d 862 ( 1986). 

5. The dismissal was handled in accordance with the requirements of the SPC regulations. 25 NCAC IJ. 0613(b). OnJuly 14, 
1994, Irvin was sent, by certified mail, a letter telling him the time, place, and date of a pre-disciplinary conference. The 
letter stated, in numbered paragraphs, that during the conference he was to be questioned on three issues: ( I ) that he made 
false and malicious comments about other staff members to harm or destroy their reputation or standing; (2) that there had 
been betrayal of confidential information from official inmate records and removal of same from the institution; and (3) that 
there had been failure to cooperate with state officials or hindering an internal investigation by intimidation of a fellow 
employee. TTiis statement of time and reasons adequately placed Petitioner on notice of the basis for the conference and 
when the conference was to occur. 25NCAC 1 J. 061 3(c). When Petitioner requested a continuance of the hearing for 
apparent illness on the day of the hearing, the pre-disciplinary conference was rescheduled for a week later. The letter 
referred to the matter as a "disciplinary conference." However, the body of the letter indicated that the conference would 
be cause for a decision to be made "concerning your future employment." This made clear that the level of discipline 

66 NORTH CAROLINA REGISTER July 1, 1999 14:1 



CONTESTED CASE DECISIONS 



contemplated included the possibility of dismissal. 

6. The Conference was held on July 29, 1994. When the conference began. Warden French and Bobby Reardon, the 
Petitioner's supervisors, orally read to him in detail from a memorandum which set out the charges against him. Petitioner, 
though given opportunity to do so, declined to answer the charges, stating only thai he denied all allegations and that the 
prior warden had promised him that he would receive and could respond to all the allegations in writing after a reasonable 
period of time. At the end of the conference. Warden French presented Petitioner with a pre-disciplinary conference form, 
on which "pre-dismissal conference" was checked, explained the form to him, and had him sign the form. On the form 
Petitioner wrote "Let it be known I requested and was denied the opportunity to review each allegation and prepare a written 
response after a reasonable period of time." Petitioner also received a memorandum, which he signed, which set out in detail 
the allegations against him. These proceedings conformed to the requirements of 25NCAC 1 J. 061 3(e) since he was given 
detailed notice of the basis for the proposed discipline, was given an opportunity to respond and explain, and told of the 
intended level of discipline. See, Nix v. Department of Administration , 106N.C. App. 664. 417 S.E.2d 823 (1992). 

7. After the conference, and on August 16, 1994, Warden French sent by certified mail, a letter to Petitioner setting out the 
specific bases for his recommendation to dismiss petitioner and that he would be notified of the final disposition in his case. 
Thereafter, on September 13, 1994, Petitioner received a letter dismissing him setting out in detail the allegations against 
him. The letter explained his appeal rights. The dismissal letter conforms with the requirements of 23NCAC I J. 061 3(f). 
The dates alleged as to when copying occurred were incorrect since the best evidence was that it did not occur in June, 1 994 
but in January-April, 1994. This is a non-material variance and is not fatal to the sufficiency of the letter. Petitioner did not 
and has not defended against his dismissal on a claim that he had not copied these documents in June; he has asserted that 
he only copied once and that he did it for professional reasons. This information fully apprised him of the bases of the 
information, including specifically his accusers, for his dismissal. Owen v. UNC-G Phvsical Plant , 121 N.C. App. 682,687, 
468S.E.2d813 (1996); Leiphart v. N.C. School of the Arts, supra . See also . State v. Ramey , 318 N.C. 457. 349 S.E.2d 
566 (1986); State v. Price , 3 1 N.C. 596, 3 1 3 S.E.2d 556 (1984) (A variance as to time becomes material and of the essence 
only when it deprives the defendant of an opportunity to present his defense adequately). 

8. After Petitioner made clear he did not intend to cooperate or otherwise discuss the charges and issues brought up by Warden 
French, Mr. French determined that suspension until the disciplinary decision could be formalized was appropriate. He sent 
Petitioner from the room, called the Department of Conection's personnel department and obtained permission to place 
petitioner on investigatory suspension until the dismissal could occur. When petitioner returned that afternoon, he was given 
a memorandum, which suspended him without pay "so that this office might formalize our final position concerning the 
serious allegations which have been made against you." The memorandum set out in detail the charges and Petitioner, upon 
receiving this information, made no attempt to respond to these issues, although he had the opportunity to do so. This 
procedure fully comports with the regulations then in place for suspension without pay pending investigation. 

9. Suspension without pay can only be in effect for 45 days. Petitioner was not informed of his discharge until the 46th day. 
However, he received payment for that 46th day. This procedural violation of the limitations on investigatory suspension 
was fully rectified by the payment for the additional day. No further compensation is appropriate and this does not impact 
on the propriety of the dismissal. 25 NCAC I J. 0432. 

RECOMMENDED DECISION 

That Petitioner's discharge be upheld as being for just cause. 

ORDER 

It is hereby Ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, Post Office 
Drawer 27447, Raleigh. North Carolina 2761 !-7447, in accordance with N.C, Gen. Stat. § 150B-36 (b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
to this Recommended Decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. 
Stat. § l50B-36(a). 



14:1 NORTH CAROLINA REGISTER July 1, 1999 67 



CONTESTED CASE DECISIONS 



The agency is required by N.C. Gen. Stat. § 1 50B-36(b) to serve a copy of the final decision on all parties and to furnish 
a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The final decision in this contested case will be made by the North Carolina State Personnel Commission. 

This the 18" day of May, 1999. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



68 NORTH CAROLINA REGISTER July I, 1999 14:1 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ROCKINGHAM 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 DHR 1761 



ANDREW GAINEY 
Petitioner. 



OFFICE OF THE CHIEF MEDICAL EXAMINER 

Respondent. 



RECOMMENDED DECISION 



On April 28, 1999, Administrative Law Judge Melissa C. Owens heard this contested case in High Point, North Carolina. 
After all the evidence was presented, Respondent's counsel moved for a directed verdict. 

APPEARANCES 



For Petitioner: 
For Respondent: 



Pro se 

Elizabeth J. Weese 
Assistant Attorney General 

ISSUE 



Whether the Respondent exceeded its authority or jurisdiction, acted erroneously, acted arbitrarily or capriciously or 
otherwise substantially prejudiced Petitioner's rights by refusing to amend the death certificate of Arthur Ray Gainey to relleci 
accident, rather than suicide, as the manner of death? 

EXHIBITS 

The parties stipulate that documents contained in the Office of the Chief Medical Examiner's file concerning Andrew 
Gainey' s death may be received into evidence without further identification or proof Included in this file are four documents 
submitted by Petitioner to Respondent in 1998: (1 ) a statement from Petitioner- not dated: (2) a letter dated February 6. 1999 from 
James Stowall; (3) a letter dated February 1998 from Dale B. Furr. Sheriff of Richmond County; (4) a personal statement from 
Marshall L. Norris dated February 13, 1998. 

FINDINGS OF FACT 

1 . The parties are properly before the Office of Administrative Hearings and the Office of Administrative Hearings 

has jurisdiction over this case. 



2. 



Petitioner is the father of Arthur Ray Gainey. 



3. Petitioner has the burden of proving by a preponderance of the evidence that Respondent exceeded its authority 
or jurisdiction, acted erroneously, arbitrarily or capriciously or substantially prejudiced Petitioner's rights by refusing to amend Arthur 
Gainey's death certificate. 

4. The Chief Medical Examiner's office oversees the work of the medical examiners in all of the counties in North 
Carolina who must submit reports to the Office of the Chief Medical Examiner. This office serves as the final authority on medical 
examiner issues and opinions relating to cause and manner of death. 

5. Dr. John R. Butts, Jr. has been the Chief Medical Examiner since 1987. Dr. Butts is board certified in three areas 
of pathology, is Head of Division of Forensic Pathology at UNC-CH School of Medicine, serves as Adjunct Professor of Pathology 
at Duke University School of Medicine, and has been qualified to testify as an expert in forensic pathology over 500 times. In 



14:1 



NORTH CAROLINA REGISTER 



July 7, 7999 



69 



CONTESTED CASE DECISIONS 



addition. Dr. Butts has reviewed numerous cases like that of Arthur Gainey. 

6. In February 1998, Petitioner requested that Respondent amend the death certificate of Petitioner's son, Arthur 
Gainey. 

7. Pursuant to Petitioner's February 1998 request. Dr. Butts reviewed his office's records on Arthur Gainey's death, 
which included the medical examiner's report, the official death certificate, the Sheriffs Department investigative report, and 
Respondent's Investigator Brinkhouse's investigative notes. 

8. The medical examiner's report, the Sheriffs Department report, and the supplemental or official death certificate 
indicate the cause of death was suicide. The Sheriffs Department report also indicated that Arthur Gainey had been depressed 
recently because he was unable to work due to back pain. 

9. Based upon his review of those records. Dr. Butts opined that Arthur Gainey died as a result of a gun shot wound 
to the left anterior chest. An entrance wound of approximately 4 centimeters was located directly over the heart. An exit wound was 
located opposite the entrance wound at the left scapula of Mr. Gainey's back. Dr. Butts opined that the exit wound on the back 
suggested the trajectory moved horizontally and perhaps in an upward path through the body. The wound itself was a single hole 
consistent with a "contact" wound, meaning the gun was in contact with the body at discharge. Thus, Dr. Butts concluded that the 
location and type of wound were consistent with a deliberate, self-inflicted, gunshot wound. 

10. Respondent's records indicate that on July 30. 1991. Arthur Gainey's wife and son found him in a hayshed near 
his residence. Mr. Gainey was sitting and leaning on bails of hay with a 20 gauge shotgun at his left side, also leaning against the 
hay. 

1 1. Based upon his experience as a forensic pathologist, the location and type of wound, locationand typeof gun used, 
the circumstances surrounding Arthur Gainey's death, including being depressed, and the medical examiner's and Sheriffs 
Department reports. Dr. Butts concluded that those findings were highly consistent with a deliberate, self-intlicted. wound. 

12. Petitioner attempted to present three witnesses to testify as to what they saw on July 30. 1991. However, such 
evidence was excluded after a forecast of such evidence determined ( 1 ) that the evidence was not available to the Chief Medical 
Examiner when he refused to amend Arthur Gainey's death certificate in 1998, and (2) such evidence was not within the scope of 
the issue before this Court. 

13. Petitioner presented no other evidence. 

CONCLUSIONS OF LAW 

1 . Respondent is charged by N.C. Gen. Stat. § 1 30A-383 with investigating "the death of any person resulting from 
violence, poisoning, accident, suicide or homicide; or occurring under suspicious, unusual or unnatural circumstances...." 

2. When a medical examiner takes charge of a body pursuant to N.C. Gen. Stat. § 130A-383. the medical examiner 
is required to make findings regarding the cause and manner of death, and report such findings to the Chief Medical Examiner. N.C. 
Gen. Stat. § 130A-385. 

3. The medical examiner is required to complete a death certificate and. "(I )f the death was from external causes, the 
medical examiner shall state on the certificate of death the means of death, and whether, in the medical examiner's opinion, the 
manner of death was accident, suicide, homicide, execution by the State, or undetermined. N.C. Gen. Slat. § 130A-385(b). 

4. The Chief Medical Examiner is authorized to amend a medical examiner death certificate. N.C. Gen. Stat. § 1 30A- 
385(c). The Chief Medical Examiner is also authorized to inspect all physical evidence and documents which may be rele\ ant to 
determining the cause and manner of death of the person whose death is under in\estigation. N.C. Gen. Stat. § 130A-385(a). 



proof 



As Petitioner is contesting Respondent's refusal to amend his son's death certificate. Petitiimer has the burden of 



6. There is substantial evidence in the record to support Respondent's refusal to amend Arthur Gainey's death 

certificate bv chansins the manner of death from suicide to accident. 



70 NORTH CAROLINA REGISTER July I, 1999 14:1 



CONTESTED CASE DECISIONS 



1. Petitioner failed to produce any credible evidence to prove Respondent exceeded its authority or jurisdiction, acted 

erroneously, acted arbitrarily or capriciously or otherwise substantially prejudiced Petitioner's rights in refusing to amend Arthur 
Gainey's death certificate. 

RECOMMENDED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends the Respondent's actions 
be AFFIRMED by directed verdict and the Petition be DISMISSED. 

ORDER 

It is hereby ordered that the agency making the llnal decision in this matter serve a copy of that decision on the Office of 
Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447. in accordance with N.C. Gen. Stat. § 150B-36(a). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. 
Stat. § 150B-36(a). 

The agency is required by N.C. Gen. Stat. § 1 50B-36 to serve a copy ofthe final decision on all parties and to furnish a copy 
to the parties' attorney of record and to the Office of Administrative Hearings. The agency that will make the final decision in this 
case is the North Carolina State Health Director. 

This the 12" day of May. 1999. 



Melissa C. Owens 
Administrative Law Judge 



14:1 NORTH CAROLINA REGISTER July 1, 1999 71 



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